The AGU (Advocacia-Geral da União), the legal office that represents Brazil's federal government, said on Friday (Sept 4) that it had no "constitutional or legal authority" to act on Federal Police requests to appeal to the Supreme Federal Tribunal (STF), Brazil's top court, against decisions by Justice André Mendonça in two investigations, Operation Sem Desconto and Operation Compliance Zero. In a statement, the office described what the police wanted as "procedural intervention" and said there is no precedent for action of that nature in its history.

The statement responds to Federal Police intelligence reports released on Thursday (Sept 3) and attached to a decision by Justice Alexandre de Moraes. According to Poder360, the documents indicate that the AGU "chose not to file the appeals" against acts by Mendonça and raise the hypothesis that the refusal stemmed from the "preservation of a political relationship" between Solicitor General Jorge Messias and the justice. The note rejects any institutional inertia.

"The AGU has no constitutional or legal authority to act on matters of criminal prosecution in the terms sought by the corporation. This did not, however, amount to institutional inertia. As the interlocutor before the STF, the attorney general of the Union worked concretely in search of an institutional solution", the statement says.

The AGU adds that its refusal was the "result of technical and legal analysis" by lawyers with formal authority to review the matter, and that an intervention of the kind the police sought "could generate legal and institutional risks for the very investigations underway at the STF", according to Folha de S.Paulo.

How the crisis reached this point

Sem Desconto looks into fraud at the INSS, Brazil's social security institute, and Compliance Zero into Banco Master; both inquiries run at the Supreme Court under Mendonça, in petitions 15041 and 15556. On Tuesday (Sept 1), the justice lifted the secrecy on a Federal Police report exposing messages and meetings between banker Daniel Vorcaro, jailed in Compliance Zero, and Moraes. On Thursday (Sept 3), Moraes cited police reports to ask court president Edson Fachin to act against his colleague, pointing to "strong indications" of administrative improbity, abuse of authority and malfeasance in office. In Moraes's reading, Mendonça "usurped" control of the inquiries and ran them with slanted intent. The allegations have not yet been examined on the merits.

What each side says

In its reports, the Federal Police says it asked the AGU to appeal to the Supreme Court against decisions of an "atypical profile" by Mendonça, and lists four hypotheses for the office's refusal, as reported by Poder360:

• "preservation of a political relationship" between Messias and Mendonça, citing the justice's "public gestures of support" for the solicitor general's nomination to the STF, later rejected, and the "common religious background" shared by the two;
• legal conviction that an appeal would not be admissible, since the unit judged the material "unconvincing from a technical standpoint";
• caution about the cost of litigating against a Supreme Court justice, as a way to "avoid formal confrontation with a member of the court";
• an assessment of political opportunity by the executive branch, since the investigation could reach Lulinha, a son of President Lula, and an AGU appeal "would produce a public reading of executive intervention in favor of the person under investigation".

In its statement, the AGU says Messias sought dialogue with Mendonça and with Fachin "with the purpose of contributing to an environment of dialogue able to resolve differences and avoid aggravating a sensitive institutional situation", and closes by saying it remains "at the disposal of the Federal Police and the other institutions of the state". According to Folha de S.Paulo, the office had been arguing that the Federal Police proposed measures with the potential to void the Banco Master and INSS fraud investigations, and that the friction began when the force started demanding that the AGU act before the Supreme Court to curb the control that Justice Dias Toffoli held over inquiries he reported.

Next steps

Fachin ordered Moraes, Mendonça, Prosecutor General Paulo Gonet and Federal Police Director General Andrei Rodrigues to respond within five days, a deadline that falls next week. Gonet also informed the court's president that he opened an external control procedure over police activity to investigate possible interference in the drafting of the report that linked Moraes to Vorcaro. The case, once reported by Mendonça, is now under Fachin's control.