In a formal memo, Justice Flávio Dino of Brazil's Supreme Federal Court (STF) stated that his colleague Alexandre de Moraes was "impedido", barred under conflict-of-interest rules, from acting in the case that follows a Federal Police report with alleged conversations between Moraes and Daniel Vorcaro, former owner of Banco Master. Moraes is a party to the proceeding and the court's vice president, yet he voted normally on a procedural motion in Tuesday's session (Sept. 15). Legal scholars consulted by Folha de S.Paulo and BBC News Brasil criticized the vote and the lack of any challenge from the other justices.
Dino's memo
According to Folha, Dino sent the document to the court's most senior justice, Gilmar Mendes, and justices sympathetic to Moraes used it during the session to support the motion, even though the memo itself said Moraes was barred from the case. In it, Dino contests decisions by Chief Justice Edson Fachin, who suspended injunctions issued by colleagues and took over the case as its reporting justice. Dino argues that Fachin used an irregular maneuver and should therefore be barred from the case and from ruling on the request. Because he also considered Moraes barred, Dino cited the court's internal rules to justify addressing the memo to the senior justice.
The preliminary dispute consumed the session, which was marked by heated arguments among the justices and was described by members of the court itself as "shameful", according to news site g1. The core question was whether Moraes's case would be tried together with that of Justice Mendonça, whom Moraes himself has accused, and whether Fachin would keep the case or it would be reassigned. The motion, filed by Gilmar Mendes, called for a joint trial. According to BBC News Brasil, the vote was tied when Dino asked for "vista", a review period justices use to study the case files. Fachin granted it and announced a partial tally of 4 to 3 for trying the two cases separately, setting aside Dino's vote, who did not object. The court ended the session without deciding whether to join or keep the cases separate, g1 reported.
Why the vote is criticized
Experts consulted by Folha criticized both Moraes's vote and the silence of the other justices. Some said the court appears to have adopted the view that Moraes could vote on this preliminary question even if he later declares himself barred. Scholars heard by the BBC said Moraes and Mendonça could vote because the motion was preliminary and not the substance of the trial, but Ivar Hartmann, who holds a PhD in public law from Rio de Janeiro State University (Uerj), argues that both should be barred from voting for the rest of the case. Justices Kássio Nunes Marques and Dias Toffoli have already declared themselves unable to sit and will not vote in the trial, the BBC reported.
The trial that set off the crisis does not decide whether Moraes committed any wrongdoing. It examines whether the Federal Police report, which records messages in which Vorcaro asks a contact attributed to the justice for consulting work, is valid and whether an investigation should be opened. Attorney General Paulo Gonet challenged the document and said Mendonça could not have requested a police report targeting another justice without prior authorization from the full court. Mendonça says he only asked the Federal Police to identify who received Vorcaro's messages and referred the case to the court once Moraes was identified. Moraes responded with accusations that Mendonça acted illegally and with political bias in running the Master and INSS inquiries.
A trial on those accusations against Mendonça is scheduled for September 23, though the BBC found that Fachin is still weighing whether to postpone it. In Moraes's case, Dino has until December 15, the 90-day review deadline, to clear the trial to resume. Because the STF recess runs from December 20 to February 1, the case may not return to the bench until 2027, after Brazil's presidential election and the inauguration of the next president.