Negotiating with Corruptors: Peruvian Prosecutors’ Quest for Evidence

• In Event: The Causes, Costs, and Pursuit of Corruption in Latin America

Abstract

Judges and prosecutors in charge of large anti-corruption investigations are usually constrained by the paucity of evidence. Italian prosecutors in the 1990, for example, quickly concluded that “corruption involves someone who pays and someone who gets paid; if both shut up we won’t ever find out.” Courting the actors involved in bribery schemes, and convincing some of them to disclose evidence in exchange for benefits, is therefore the key to success. But doing so is far from straightforward. Judicial actors must be willing to temper their investigative zeal, while at the same time finding ways to amass evidence independently in order to increase their leverage during the negotiations. In addition, they must estimate what kind of benefits will be sufficiently attractive to extract valuable smoking guns without appearing too lenient, and thus avoid backlash from public opinion, a crucial ally, and accusations of bias from those who don’t benefit from prosecutorial selectivity. Failing to navigate these tensions may stall momentum and lead to ill repute. Judicial creativity and skill therefore play an important role in determining the success and sustainability of anti-corruption efforts. This paper explores how Peruvian prosecutors and government lawyers in charge of the local chapter of Lava Jato negotiated with Brazilian construction giant Odebretch in order to strike a deal that would allow progress in the investigation of a bribery scheme involving the country’s top politicians. While ultimately successful, such efforts were complicated by three factors. First, negotiators were highly inexperienced because this was the first deal of its kind in the country’ history. Second, prosecutors were dealing with a foreign company on the brink of bankruptcy, which could therefore easily collapse, abandon the country, and stop collaborating if the deal wasn’t lenient enough. Third, negotiators faced a severely compromised judiciary and political class eager to use any concession to delegitimize the investigation. The paper relies on interviews with key actors and other primary sources collected during fieldwork in Lima in July 2019 to process trace the negotiations, showing that judicial agency, creativity and skill in contingent strategic interactions are crucial to understand why the negotiations succeeded despite multiple attempts to boycott the deal. It also uses a conjoint experiment embedded in a nationally representative survey, and evidence from seven focus groups, to explore how the public views the trade-off between cooperation and punishment. The results underscore negotiators’ precarious position, and their limited room for manoeuvre if they wish to rely on public opinion as an ally. Overall, the analysis contributes to our understanding of how judicial actors are able to assert themselves amidst severe constraints; the micro-dynamics of anti-corruption efforts; and the conditions under which these efforts are more or less likely to succeed.

Author

• Ezequiel Alejo Gonzalez Ocantos, University of Oxford