Justice Gilmar Mendes, the longest-serving member of Brazil's Supreme Federal Tribunal (STF), said on Friday (11) that the court cannot judge, at its session on September 15, the case naming his colleague Alexandre de Moraes in the Banco Master investigation. In a formal letter to the court's president, Luiz Edson Fachin, Mendes argued that the petition scheduled for Tuesday is not ready to be judged. He asked that it be joined to Pet 16.704, a proceeding already run by the presidency, and that Fachin also take over the request to investigate Justice André Mendonça.

A case with no request to decide

Gilmar, on the court for more than 24 years, voiced "serious doubts" about the maturity of the proceeding and described its nature as "amorphous". In his account, Pet 16.662 does not define its object, the procedure to be followed, who stands as an investigated person, or what measure the full bench is supposed to take. "Strictly speaking, in Pet 16.662 there is not even a request to be decided", he wrote. The file was built from Federal Police information requested by the rapporteur himself, and the case was opened "on his own motion", without a filing by the police authority. The Prosecutor General's Office, he added, asked the plenary for no measure and argued the Federal Police report was void.

Fachin called the extraordinary session for Tuesday (15) to discuss the Federal Police report that pointed to a supposed relationship between Moraes and Daniel Vorcaro, the imprisoned founder of Banco Master. Mendonça lifted the secrecy of the document on September 1, the move that opened the crisis between the two justices. The released chapter contained 52 messages sent by Vorcaro to Moraes, extracted from the former banker's phone; the justice's replies were not in the material and, according to the news site G1, the report did not indicate that Moraes was a target of the investigation. On the same day, Prosecutor General Paulo Gonet asked for the probe to be declared void.

Judgment would start with preliminary questions

For Gilmar, going ahead with a single case would fragment proceedings that rest on common facts. "The fragmentation of proceedings resting on common factual bases, besides hindering the court's understanding of the overall picture, can produce precisely what the rules on joinder seek to avoid: irreconcilable decisions and procedural disorder", he wrote. He summed up his position in another passage of the letter: "This moment demands, above all, unity of conduct, clarity about the object of the judgment and strict observance of the procedural guarantees of all involved".

Gilmar did leave an alternative open if Fachin keeps the date. The judgment should start with preliminary questions, before any ruling on the merits. "I refer, in particular, to the nullity raised by the Prosecutor General regarding the rapporteur's order to produce the Federal Police report, of more than 200 pages, on targets chosen at the rapporteur's whim", he wrote.

Fachin has not yet responded to the letter, and the Tuesday session remains called. Moraes also sent a request on Friday, according to G1, asking for a joint judgment of the two pending petitions: the one on his messages with Vorcaro and the one gathering reports that point to a supposed breach of impartiality and suspicions of administrative misconduct, crimes of responsibility and abuse of authority against Mendonça in the operations "Sem Desconto" and "Compliance Zero". The decision to hold or postpone the session of the 15th now belongs to the court's president.