The corrupt anti-corruption boss and the bribed judges

So far, in 2017, a seemingly unending succession of corruption scandals and new high-impact ‘bombshells’ has captured headlines and dominated public debate in Colombia. Two high-impact ‘national’ scandals came to the fore in the country this year: the transnational Odebrecht scandal, the multi-million dollar bribes paid out by Brazilian construction giant Odebrecht to politicians and their electoral campaigns throughout Latin America (and which has already put former Peruvian president Ollanta Humala in jail); and the Lyons-Moreno cases, the subject of this post. Both scandals have made corruption one of the top issues of public debate in Colombia, less than a year away from congressional and presidential elections. They have also raised serious questions about how well Colombia’s institutions are actually working, leading some to propose radical solutions.

The reach of the Odebrecht scandal in Colombia is by itself astounding, and has already had several important political consequences (among other things, it has made president Juan Manuel Santos even more popular and even more of a lame-duck stripped of political capital). But the Lyons-Moreno scandal, which has not received as much attention in the English-language media, has reached former magistrates of the Colombian Supreme Court and posed serious questions about Colombia’s judiciary, the wide-reaching networks of political corruption and the role of the United States in Colombian legal cases.

What is the Lyons-Moreno scandal?

The scandal began with the arrest, on June 27, of Gustavo Moreno – a young lawyer (b. 1981) and director of the attorney general’s office (Fiscalía)’s anti-corruption unit since October 2016 – by Colombian authorities, wanted for extradition by the DEA on bribery charges in the United States. Along with another corrupt young lawyer, Leonardo Pinilla, who was also arrested, he is accused of seeking bribes from Alejandro Lyons, the former governor of Córdoba (2012-2015) who is currently facing 20 corruption charges in Colombia.

The Lyons scandals

Alejandro Lyons, a young lawyer (b. 1981) with no prior political experience, was elected governor of the Caribbean department of Córdoba in 2011. Lyons was supported by Partido de la U senators Bernardo ‘el Ñoño’ Elías (recently arrested on Odebrecht bribery charges), Musa Besaile (implicated in the Odebrecht scandal) and Martín Morales (arrested in 2016 and awaiting trial for homicide, drug trafficking and parapolítica; from the political group of former senator Zulema Jattin, under investigation for parapolítica) and mentored by former senator Miguel de la Espriella (signatory of the infamous 2001 Pacto de Ralito with the highest echelons of the paramilitary group AUC; convicted for parapolítica and purported ‘bridge’ between the AUC and the first Álvaro Uribe administration). Lyons was the young political novice who (somewhat unexpectedly) defeated the candidate of the hitherto dominant rival political clan, that of former Liberal senator Juan Manuel López Cabrales (signatory of the 2001 Pacto de Ralito; convicted for parapolítica) and his wife current Liberal senator Arleth Casado.

Lyons (source: eluniversal.com.co)

Following a familiar storyline played out across the continent, the new governor relished his power and ‘broke free’ from his initial political patrons and created his own political group, oiled by access to public funds, which showed its muscle in the 2014 congressional election – when his younger cousin, Sara Piedrahita Lyons – a former beauty queen without any political experience – was elected representative with over 105,000 preferential votes (the most of any representative in the country in 2014!).

Sara Piedrahita Lyons, representative and beauty queen

In 2015, locked in a dispute with ‘Los Ñoños’ (Elías and Besaile), Lyons was unable to impose his old friend and former secretary of administration Carlos Gómez as the Partido de la U’s gubernatorial candidate, losing to Edwin Besaile – the brother of Musa Besaile, supported by ‘Los Ñoños’ – but Gómez received the endorsement of Vice President Germán Vargas Lleras’ Cambio Radical and the department’s two Conservative groups. However, Lyons later switched sides and formally endorsed Edwin Besaile, the clear favourite and eventual winner, although he played for both sides. Lyons retained some degree of influence in the new administration and in some municipal governments, although he has lost most of that since 2015.

As governor, Lyons and his cronies looted the department and bled it dry. Although the sheer extent of his looting only became clear after he left office, there had already been noises and controversies during his term. In 2014, his former royalties director Jairo Zapa went missing and his dead body (murdered) was found four months later next to a farm owned by Lyons’ father. Six people were arrested in connection to Zapa’s murder, and Lyons is said to have been involved, but the case has been on the backburner for over a year. In another controversy, in 2014 Lyons gave the concession for the departmental lotteries to a company whose board of directors and shareholders included a man suspected of having been a strawperson for Salvatore Mancuso, a top commander of the AUC.

Since 2016, however, legal investigations have uncovered several schemes and plots to loot the department – some of them impressively complex and twisted. One of them is the ‘hemophilia cartel’, the payment of US$ 15 million by the department to hospitals for treatment and medication to some 190 fake hemophiliac patients (!). Most of the people arrested in this case – including two former departmental health secretaries and the legal representatives of the two hospitals which received the money – were politically connected to Lyons and/or ‘el Ñoño’ Elías. The other major scandal involves the possible embezzlement of $ 20 million through various agricultural contracts (the 2 biggest: ‘Caribbean agro-ecological corridor’, ‘breeding rams to mitigate the effect of free trade’) financed through innovation, science and technology royalties transferred to the department. Again, many the people arrested in this case are politically connected to Lyons (one is also tied to Zapa’s murder) – including his former royalties director, who was planning secretary in Edwin Besaile’s administration as a ‘quota’ of Lyons until his arrest in January. These are only a few of the corruption cases in Córdoba currently being investigated by the Fiscalía, which have led to the arrest of some 50-odd civil servants, politicians, contractors, lawyers and judges (many with political connections to the department’s caciques). La Silla Vacía has an interactive table breaking down the major corrupt contracts of the Lyons era in Córdoba.

Conveniently, about two weeks before charges were formally laid, Lyons went to Miami (par for the course), because ‘his pregnant wife needed treatment’, denying that he was evading justice and insisting that he would collaborate with Colombian authorities (just not right now…). As it so turned out, Lyons began secretly assisting the DEA and he was the one who gave them the necessary incriminating evidence against Gustavo Moreno and Leonardo Pinilla.

In November 2016, Moreno and Pinilla approached Lyons seeking a 100 million peso ($ 34,500) bribe in exchange for copies of sworn witness statements in the corruption cases against him. He later informed the DEA and the Fiscalía of this bribery-extortion scheme and was working undercover for the DEA when Moreno and Pinilla took the bait. Sometime in June, Moreno and Pinilla travelled to Miami to receive a $ 10,000 deposit of the bribe from Lyons, through the intermediary of Pinilla who later gave the money to Rivera in a suburban shopping mall bathroom and parking lot. Recorded conversations showed that Moreno and Pinilla discussed Moreno’s power to control the investigations and Moreno said that he could inundate his prosecutors with work so that they would be unable to focus on the investigation; in exchange, they demanded a bribe of 400 million pesos ($ 132,000) and another $ 30,000 to be paid before Moreno left Miami (see details here in Englishor the federal district court indictment). In Colombia, Lyons’ ploy was seen as a master stroke to negotiate judicial benefits in the US and spite the Fiscalía.

The Moreno case

Gustavo Moreno (elheraldo.co)

Naturally, Moreno’s arrest sent shockwaves and lots of uncomfortable questions for the attorney general, Néstor Humberto Martínez, who was the one who appointed Moreno as anti-corruption director last year. Moreno is a young lawyer (35, graduated in 2007) who made a lot of powerful and influential friends in Bogotá’s top political and judicial circles, notably as a ‘specialist’ on false witnesses and as the lawyer of several politicians with legal woes. LSV explained how Moreno was friends with a lot of high-ranking politicians and judges, from all sides, and had enjoyed the political backing of many parties (CD, Liberal, CR etc.) – although there are unverified claims that he was particularly close to Cambio Radical, potentially through Vargas Lleras’ brother (CR senator Germán Varón denied this claim and said that Moreno had friends everywhere). His intermediary in the Lyons affair, Leonardo Pinilla, is even younger (32) but a prominent lawyer who was working in the offices of the law firm of… Alejandro Lyons’ father in Bogotá.

There are still many unanswered questions about Moreno’s relationship to politicians and to attorney general Néstor Humberto Martínez: why did Martínez appoint a criminal lawyer with no experience on corruption files to be top anti-corruption boss? Who recommended Moreno to Martínez? Why did Martínez appoint the lawyer of politicians to investigate political corruption?

In considering these questions, it should be kept in mind that Néstor Humberto Martínez is an attorney general with a lot of powerful friends in high places (which naturally leaves many skeptical about his true intentions). Martínez, elected in July 2016 by the Supreme Court from a list of three candidates sent by president Santos, had been a successful lawyer and prominent politician for years. In politics, Martínez was justice minister under Ernesto Samper (1994-1996), ambassador in Paris (1996-1997), interior minister (1998-2000) under Andrés Pastrana and ‘superminister’ of the presidency under Juan Manuel Santos (2014-2016). Martínez, praised by colleagues as an intelligent, hard-working and cunning lawyer, was a lawyer for the rich and powerful. His law firm advised many of the biggest corporate mergers in the banking sector, and he was the chief legal advisor to Luis Carlos Sarmiento, the richest man in Colombia ($ 12 billion). He advised Sarmiento on the acquisition of the El Tiempo editorial group from the Spanish group Planeta, the regulatory process before the SEC for the Grupo Aval‘s entrance on the NYSE and the acquisition of Central American banking giant BAC Credomatic. His firm also represented Carlos Ardilla Lülle‘s sugar ingenios, Canadian oil corporation Pacific Rubiales and the private TV duopoly of Caracol TV and RCN TV. Martínez is a close friend of former vice president and 2018 presidential candidate Germán Vargas Lleras; in 2016, he was considered as CR’s ‘candidate’ for attorney general after the Liberals and Partido de la U pressured Santos not to include him on his list of candidates. Considered by many to be a Vargas Lleras ally, certain of his decisions as attorney general have raised questions about whether he is selectively prosecuting certain cases of corruption while ignoring others.

Moreno penned a melodramatic letter of regrets and remorse, announcing that he would fully collaborate with both countries. He asked for expedited extradition, and is said to be ‘in a race’ with Pinilla to see who can give the most information to the US. However, in July, in his first court hearing in Colombia, a judge refused his acceptance of charges when Moreno, unexpectedly, claimed that he had been pressured by Fiscalía’s actions against his wife and questioned the details of some of the charges (the size of the bribe, notably).

The judicial scandal

Bustos (l.) and Ricaurte (r.) in foreground; l. to r. Besaile, Ramos and Andrade in background (semana.com)

Just a few days ago (Aug. 15), a new element of the Moreno scandal exploded. In recorded conversations obtained from the US, Moreno and Pinillia tell Lyons – as ‘proof’ of their efficiency – how former Supreme Court magistrates Leonidas Bustos and Francisco Ricaurte demanded between 1 and 5 billion pesos ($ 335,000 to $1.6 million) in return for favourable verdicts or inaction in trials against various high-ranking politicians – the three names cited by the Fiscalía and in the media headlines were senators Hernán Andrade (Conservative) and Musa Besaile (La U) and former senator/former governor Luis Alfredo Ramos (CD/Cons.), ‘among others’. All three faced investigations and/or trials in the Supreme Court in recent years – Andrade was acquitted of supposedly benefiting financially from the liquidation of a public pension fund, Besaile has pending investigations for parapolítica which have been collecting dust since 2010 and Ramos was released from preventive detention in 2016 and is awaiting an acquittal in a parapolítica trial which got him arrested in 2013. All three politicians were defended in court by Gustavo Moreno.

Bustos and Ricaurte, both former presidents of the Supreme Court (2015-2016, 2008-2009 respectively), were a few years ago among the most powerful men in the judiciary – said to ‘control’ votes and trial outcomes in their respective chambers (criminal and labour respectively). Both zealously (self-interestedly) defended the ‘corporate interests’ of the judiciary against the two most recent political attempts to reform the judiciary, and a few years back were held responsible for the continuous deadlocks and ‘chaos’ in the Supreme Court (which continues).

Ricaurte left the Supreme Court in 2012 and was elected to the administrative chamber of the unpopular Superior Council of the Judiciary (which writes up the lists of eligible candidates from which the Supreme Court and Council of State choose their members), becoming the face of the clientelistic practice of ‘I elect you, you elect me’ – because the people who elected him to the Superior Council of the Judiciary included the same people he had himself appointed to the Superior Council of the Judiciary when he was on the court. For this reason, Ricaurte’s election was challenged in the Council of State, and invalidated in July 2014 – but Ricaurte controversially managed to delay the application of the verdict until November 2014.

Bustos and Ricaurte were two of the top names on whiz kid Gustavo Moreno’s list of powerful friends and connections. Semana reported that Moreno visited Bustos’ offices at least 30 times between 2010 and 2012. Both were also close to former Inspector General Alejandro Ordóñez, currently a presidential pre-candidate on a Trump-inspired far-right platform. Ordóñez’s 2012 reelection as Inspector General was invalidated last year by the Council of State, because he had appointed relatives of Supreme Court magistrates and senators (the ones who shortlisted and elected him, respectively). Moreover, the appointment of Bustos’ then-wife to a position in the Procuraduría by Ordóñez in 2010 was one of the unconstitutional appointments cited by the Council of State in its ruling invalidating Ordóñez’s reelection.

Bustos was fairly close to attorney general Néstor Humberto Martínez – and Bustos used his power over his peers to lobby for Martínez’s candidacy in 2016. It is also rumoured that he was the one who recommended Moreno to him.

Another former magistrate and president of the court, Camilo Tarquino, was also named in the recordings, but apparently he was no longer a magistrate and was acting as a lawyer when he was bribed.

The implicated trio of politicians

Andrade, Besaile and Ramos are the three most important politicians to have benefited from Moreno’s network of corruption in the highest court. Andrade is a major santista Conservative senator and current (embattled) director of the Conservative Party’s executive, who intends to ‘pass on’ his Senate seat to his sister in 2018. In 2008, Andrade was accused of having received 250 million pesos in 2006 (to fund his campaign) from the mastermind of a mass embezzlement from a public pensions fund (Cajanal) and the Court opened a formal investigation for three criminal charges in 2010. In September 2014, the Court precluded the case. Semana recently investigated the details of this old case and found that, in 2013, the Court concluded that it had multiple solid evidence that Andrade had ‘most likely’ committed the three crimes he was accused of (illicit enrichment, procedural fraud, falsification of public documents) and that it did not believe Andrade’s arguments; a year later, in precluding the case, the Court ‘inexplicably’ contradicted or negated its previous arguments. Andrade argues that another magistrate, not Bustos, wrote the court’s verdict and that it was decided unanimously.

Andrade’s case is the only one which resulted in a formal acquittal – Musa Besaile’s investigations have simply been backlogged, while Ramos’ case is more uncertain although an acquittal has been expected for several months. Luis Alfredo Ramos, a former senator (2002-2006) and governor of Antioquia (2008-2011), was arrested in August 2013 – when he was one of the uribista CD’s presidential pre-candidates – for parapolítica. He was released in November 2016, after the evidence against him collapsed because of false witnesses (some having been arrested for false testimony). He was, at the outset, defended by Gustavo Moreno whose ‘expertise’ was… false witnesses, and since his release, Ramos has been touring the country presenting himself as a victim of… false witnesses.

From the evidence in this scandal, Pinilla said that in the Lyons case, magistrates asked for up to 5 billion pesos, while in Musa Besaile’s case, 3 billion pesos were paid to freeze investigations and prevent an arrest warrant from being issued. It is also reported that 2 billion pesos were paid in Ramos’ case.

LSV found out the names of the ‘other politicians’ which Moreno defended before the Supreme Court. They include many current and former representatives but also former justice minister and former senator Jorge Londoño, suspended senator Martín Morales, former senator Zulema Jattin and former Cesar governor Lucas Gnecco Cerchar. Some of his political clients already have criminal convictions against them.

The Supreme Court has referred the cases of Bustos and Ricaurte to the ‘commission of accusations’ of the House of Representatives, which is constitutionally responsible for investigating accusations made against magistrates of the Supreme Court and, if they judge it appropriate, to file the equivalent of articles of impeachment before the Senate. However, the ‘commission of accusations’ is widely seen as a joke and is tellingly nicknamed the ‘commission of absolutions’. Out of thousands of accusations, only two cases since the 1950s have made it out of the commission – in 1959, general Gustavo Rojas Pinilla (military ruler from 1953 to 1957) was accused by the commission; in 2016, it accused Constitutional Court judge Jorge Ignacio Pretelt for seeking a bribe. The commission’s most infamous remains the preclusion of the investigation against President Ernesto Samper during the Proceso 8.000. This time, however, the commission may find the weight of evidence (obtained via the DEA no less) against Bustos and Ricaurte too overwhelming to absolve them.

Effects

The judicial scandal has been the latest bombshell in a series of major corruption scandals which exploded in Colombia this year. It is all the more significant given that this scandal affects one of the highest courts and the judicial branch. So what are the possible effects?

The issue of judicial reform – an institutional reform of the judicial branch (its powers, makeup and structure) – has been on every government’s agenda since Álvaro Uribe, if not earlier. For various reasons, no government has been successful. Juan Manuel Santos’ judicial reform in 2011-12 started off on the right foot, but quickly derailed and before long Congress proceeded to vandalize it and it famously became an ‘orangutan’ which drained the government of much of its early political capital. In the most recent attempt, as part of Santos’ ‘balance of powers’ constitutional reform in 2015, Congress to its credit didn’t ruin it too much, leaving it up to the courts – who disliked the implications of the reform for their zealously guarded ‘corporate interests’  – to tear it to shreds and for the Constitutional Court to kill two of the most important elements of the reform in 2016. Bustos was one of the very vocal opponents of the judicial reform in 2015 – as was Néstor Humberto Martínez, despite being minister of the presidency at the time.

With this new scandal, a judicial reform now seems to be a necessity – but given the precedents, some are proposing drastic measures: a constituent assembly. To the first point, the scandal has further highlighted some of the problems of the judiciary – namely, a self-interested zealous defence of ‘corporate interests’, the absence of efficient mechanisms by which to try magistrates and judges for disciplinary and criminal offences (one of the articles of the 2015 reform struck down by the Constitutional Court in 2016 was the creation of a new commission to replace the discredited commission of accusations to investigate and accuse judges), the way in which the judiciary is administered (an element of the 2015 reform also struck down in 2016 was the replacement of the broken and unpopular Superior Council of the Judiciary), the way in which members of the Supreme Court and Council of State are chosen (currently ‘co-optation’ method by their peers from lists presented by the Superior Council of the Judiciary) and the electoral powers of the courts (electing the attorney general and providing candidates for inspector general, comptroller, ConCourt etc.).

To the second point, more and more voices are calling for a constituent assembly to reform the judiciary, arguing that it is the only option left on the table. The most prominent voice favouring a constituent assembly is Liberal senator and former attorney general Viviane Morales, recently joined (for somewhat different reasons) by Partido de la U senator Roy Barreras. While it is constitutionally possible to call, via referendum, for a constituent assembly with a fixed agenda and mandate, the process is complicated and political calls for a constituent assembly always bring up more questions than answers. Many of the politicians calling, opportunistically, for constituent assemblies are suspected of having a hidden agenda – Viviane Morales’ controversial proposal for a constitutional referendum to ban same-sex adoption was recently voted down in commission; while uribismo‘s usual calls for a judicial reform are suspected of being a way to bring back presidential reelection by the back door and settle their scores with the ‘corrupt judiciary’.

Honest people who know what they’re talking about rightfully warn against an ‘excessive’ response to the scandal – not all magistrates and judges are rotten (far from it!), Colombia’s judiciary has not ‘failed’ (far from it!), Colombia’ top courts are still among the most effective and independent in Latin America and a constituent assembly could create more problems than it fixes. Some more reasonable voices have proposed finding common political agreement on a ‘basic’ judicial reform to fix the three or four unarguably broken aspects, although in the current political context this is very unrealistic (and will be unrealistic until August 2018). In short, although a judicial reform is overdue, it will – most likely – need to wait until a new president is elected and sworn in, in August 2018.

In any case, many are secretly happy about this. Álvaro Uribe, who attacked the independence of the judiciary during his second term, was gloating as this scandal supposedly ‘proves’ that he was correct in his claims that his people have been victims of ‘political persecution’ by the ‘corrupt’ courts. Upon hearing the news, Uribe said that he felt a “great sadness” (his euphemism for ‘I was right’ – e.g. ‘great sadness that the country is being surrendered to the FARC’) in thinking that “María del Pilar Hurtado, Bernardo Moreno, Alberto Velásquez and Sabas Pretelt de la Vega” have been ‘victims’ (all four former Uribe bureaucrats and ministers convicted by the Supreme Court). Curiously, Andrés Felipe Arias, typically Uribe’s top example of a ‘victim’ wasn’t mentioned – might it because it may be that Arias may have received regular bribes from Odebrecht?

Alejandro Ordóñez got into a Twitter fight with Rodrigo Uprimny, one of Colombia’s top legal analysts, and lied (or misled) in every single claim he made (fitting that he praises Donald Trump!). He also called for a ‘re-engineering of the judicial branch’, which is rich coming from a man removed from office for judicial corruption. Retired colonel Luis Alfonso Plazas Vega, acquitted last year by the Supreme Court for the disappearance of people during the ‘re-taking’ of the Palace of Justice in 1985, was tweeting about how the most serious problem in Colombia is ‘judicial corruption’ (not, say, extrajudicial assassinations).

As for the Lyons case and corruption in Córdoba, it highlights the negative impact of decentralization. Decentralization since 1988/1991 has undeniably had very positive aspects and allowed morally upstanding, competent mayors and governors to come to the fore and have positive impacts on cities and regions (Antanas Mockus, Sergio Fajardo…). However, in regions without strong civic cultures and strong illegal armed groups (especially paramilitaries, as in Córdoba), decentralization allowed illegal armed groups to capture ever-increasing local public funds and strengthened the power and autonomy of a new class of regional and local politicians who ‘live from politics’. Lyons and ‘Los Ñoños’ are only a few of the examples of such politicians, who enriched themselves, oiled powerful clientelist machines and amassed considerable political influence at the national level by capturing local power and the funds which come along with it. In fact, ‘Los Ñoños’ are nationally renowned as the top two beneficiaries of President Santos’ ‘marmalade’ (pork-barrel spending allocations given to congressmen in exchange for legislative support), which allowed them to become the Partido de la U’s two most voted senators in 2014 with over 140,000 preferential votes each.

Moreno’s case brings up an interesting question – what is the DEA’s interest in this? It should be obvious that the DEA’s main concern isn’t stopping political corruption in Córdoba. Why did they get on the tracks of Colombia’s anti-corruption boss? What is the US’ end game in this scandal?

Finally, the ongoing judicial travails of Lyons, Moreno and Pinilla show that Pablo Escobar was wrong. He famously declared ‘rather a tomb in Colombia than a jail cell in the United States’. Moreno and Pinilla are both explicitly seeking extradition to the United States, and while it seems that Lyons has agreed to a plea bargain with Colombia, for a good time it seemed as if his goal was a deal with the United States (it isn’t over yet either). Extradition now seems like the better deal, as the case of several paramilitary leaders and drug traffickers show: the United States judiciary’s interest is about drug trafficking or money laundering, and not about how much money you stole from education funds in Córdoba, and sentences tend to be more lenient than in Colombia (where the judiciary’s interest is in many more matters), so one can negotiate a good deal, serve some jail time and then get to remain in the United States in comfortable Florida exile. This should be a very concerning trend for the Colombian judiciary.