Brazil's Supreme Federal Court (STF) suspended its session on Tuesday (Sept 15), the first devoted to the Master crisis, without deciding whether the cases of Justices Alexandre de Moraes and André Mendonça will be tried together. Justice Flávio Dino requested a "vista", a procedural move that gives a justice more time to study the case files, and the vote stopped. The tally stood at 4 to 3 for keeping the two reviews separate, with no final ruling yet.
Court President Edson Fachin, the session's rapporteur, voted against a procedural motion filed by Justice Gilmar Mendes, who wanted to postpone the review of Moraes and merge it with the Mendonça case. Fachin was joined by Mendonça, Luiz Fux and Cármen Lúcia. Gilmar, Cristiano Zanin and Moraes himself backed the joint review. Dino had sided with that group, then switched to the review request, which removed his vote from the count.
Fachin also rejected redistributing the report on Moraes, which he had pulled into the court presidency's chambers. Gilmar had called for a lottery to pick a new rapporteur, arguing this is what the court's internal rules require. "I want to state from the outset that I favor keeping not only the separation between the trials. I vote to proceed with today's session, not to join the cases mentioned and, as a consequence, the redistribution under the internal rules is moot," Fachin said, according to news site g1.
Diverging votes
Dino opened the split. "Mr. President, it seems to me the path is to respect the connection that brought us here, and for that reason I consider that the route in Justice Gilmar's motion best preserves our role as providers of justice and of legal security," he said. Zanin joined the motion and said Mendonça should not vote on the analysis of Vorcaro's messages to Moraes. Mendonça, who is judging his own conduct in the session, argued for separation:
I see no common factual basis. What there is, regarding me, is a supposed intelligence report, an illegal report, with monitoring and selective collection of data on STF justices and other authorities, in an activity typical of a parallel Federal Police. An illegal document that the document itself says has no probative value. These are entirely distinct factual and legal questions.
Moraes voted for the joint review. "We face a concrete risk of contradictory rulings and of procedural turmoil, judging the same things, only with the sign inverted (...) I join Justice Gilmar's motion," he said. According to g1, Dino changed course after a shouting match between Gilmar and Mendonça; InfoMoney reported that Dino said there was no climate to proceed with the analysis.
Context and what comes next
The session never reached the merits, the possible opening of a criminal investigation into Moraes. Two justices did not vote: Kassio Nunes Marques declared himself barred and cited the proximity of this year's elections, and Dias Toffoli recused himself as a matter of conscience, according to InfoMoney. The crisis escalated after Mendonça lifted the secrecy on Federal Police reports about the Banco Master investigation. One document cited 52 messages between banker Daniel Vorcaro and Moraes, in-person meetings between the two and a 130 million reais contract between the bank and the law firm of the justice's wife, Viviane Barci de Moraes.
The review period can last up to 90 days, though the justice may return the case sooner. If Dino does not present his position within that window, the case goes back on the docket automatically. The session on Mendonça's conduct is scheduled for September 23. When the review of Moraes resumes, Dino may present his vote again, and the full bench must settle the procedural question before moving to the merits.