Brazil's Prosecutor General's Office (PGR) has concluded that there was "double nullity" in the order issued by Supreme Federal Court Justice André Mendonça for the Federal Police to gather further information on Justice Alexandre de Moraes. The position is set out in a legal opinion read aloud by the court's president, Edson Fachin, at Tuesday's plenary session (Sept. 15) on Petition 16.662, the case file that gathers the crisis involving the two justices, the Federal Police's director general, Andrei Rodrigues, and Banco Master founder Daniel Vorcaro. In the PGR's view, the rapporteur must acknowledge the nullity and dismiss the petition.
According to the opinion, quoted by Poder360, the first nullity lies in the origin of the order, which was issued "without a request from the Public Prosecutor's Office" and "without police initiative". In the office's words, "the order given to the police authority to investigate specific people, without a request from the Public Prosecutor's Office, without initiative by the police authority, is null because it exceeds the limits of the magistrate's competence in the pre-procedural phase". The text adds that "landmark decisions of the Supreme Court leave no doubt that a judge's taking on functions other than his own is a cause of nullity that affects the results of the action".
"The investigation order issued by the rapporteur justice and the evidence it gathered therefore suffer from double nullity."
The second nullity, according to the prosecutors, follows from the fact that the inquiry involved a fellow member of the court itself. Even if there were signs of criminal wrongdoing, the opinion says, it was not up to Mendonça to deepen the inquiries into his colleague: he should have gone to the court's president "so that the plenary could assess the merit of his impression, agreeing or not with the investigation". The text concludes that "since the order and its result are null, it falls to the rapporteur to acknowledge this and dismiss the petition".
How the case began
The crisis started on September 1, when Mendonça, the rapporteur for the Banco Master investigations, made public a Federal Police report that points to communication between Moraes and Vorcaro, who is under investigation as the leader of the largest fraud against Brazil's financial system, according to Poder360. The case has since reached other justices: Dias Toffoli declared himself biased and Kassio Nunes Marques barred, and both are out of the trial. On Tuesday the full court began debating, for the first time in its history, whether to open an investigation against a sitting justice, according to G1.
The session and what comes next
The trial was suspended before the merits. By 4 votes to 3, a majority formed to keep the analyses of Moraes's and Mendonça's situations separate, with votes from Fachin, Mendonça, Luiz Fux and Cármen Lúcia; Gilmar Mendes, Cristiano Zanin and Moraes himself wanted a joint review. Justice Flávio Dino, who had sided with that group, asked for a review period, halting the session. According to G1, the trial resumes next week, with no date set.
During the session, Prosecutor General Paulo Gonet said the Federal Public Prosecutor's Office "has always worked for the full clarification of the facts and for the success of criminal prosecution", and denied any closeness to Vorcaro: "There is not, and I never had, a relationship of proximity with Mr. Vorcaro". In his own defense, Mendonça said he had not taken the files' content as true nor concluded that a crime occurred, and that he asked the Federal Police for information to understand the context of the messages, under seal. Separately, the Federal Prosecutor's Office's Superior Council scheduled for September 25 a session on Vorcaro messages that mention Gonet, G1 reported.