Persisting Secrets: Legal Uncertainty and the Legitimacy of Investigative Techniques

Luiz Vilaça, Graduate Student

Why does corporate and political corruption remain secret, given the large-scale, inter-organizational coordination it requires? For some authors, these secrets persist because of internal barriers within corrupt organizations that prevent insiders from knowing, believing, or reporting crimes. Other authors focus on the challenges that investigators face to piece together complex corruption schemes. However, these theories cannot explain why a bribery scheme inside Petrobrás, a state-owned oil refinery in Brazil, persisted for decades before being dismantled by Operation Car Wash (2014-2020), an investigation that jailed over 200 politicians and businessmen. This paper compares Car Wash with a prior investigation called Sandcastle (2009-2011) that similarly targeted Petrobrás but failed. Drawing on document analysis and 90 original interviews with federal investigators and judges, I argue that legal uncertainty in higher courts prevented prosecutors from dismantling the Petrobrás corruption sooner. I show that despite piecing together the corruption scheme, Sandcastle investigators failed because their evidence was dismissed: higher court judges argued prosecutors could not have used a wiretap solely based on an anonymous tip because that violated defendants' right to privacy. By analyzing the universe of judicial decisions on wiretaps and anonymous tips (N=156), I show that prosecutors did not anticipate wiretaps would be a problem because judges had rejected similar appeals in cases of drug-related crimes, where defendants usually come from lower socioeconomic backgrounds. By contrast, judges often sided with defendants in corruption cases. The different ways in which judges interpreted the law created an environment of legal uncertainty that made it possible for the corruption of Petrobrás to continue for years even after being uncovered by investigators. This paper bridges scholarship on sociology of deception and of law, showing that we need to examine how courts make decisions on the legitimacy of investigative techniques to understand the persistence of corrupt schemes.

No extended abstract or paper available

 Presented in Session 170. Police and investigative techniques