Supreme Court crisis spills into Brazil’s presidential race

RIO DE JANEIRO (CN) — A weeklong dispute among justices on Brazil’s Supreme Court has plunged the court into an unprecedented crisis. The conflict paralyzed some of the court’s work Wednesday and spilled into the campaigns of the leading presidential candidates ahead of the Oct. 4 election.

At the center of the clash are Alexandre de Moraes, appointed by Michel Temer in 2017, and André Mendonça, appointed by Jair Bolsonaro in 2021.

Felipe Recondo — co-founder of JOTA, a news platform focused on Brazil’s judiciary and politics, and author of several books about the Supreme Court — said de Moraes became associated with Lula after overseeing cases involving the Jan. 8, 2023, attacks and the coup attempt led by Jair Bolsonaro after his defeat in the 2022 election. The former president was convicted and is serving a 27-year, three-month prison sentence.

“It is as though Lula and Alexandre de Moraes were enemies of Bolsonaro and his supporters,” Recondo said.

The case became a campaign issue Monday during Brazil’s Independence Day celebrations. At a rally that drew nearly 30,000 people in São Paulo, presidential candidate Flávio Bolsonaro linked President Luiz Inácio Lula da Silva, who is seeking reelection, to de Moraes.

“Whoever votes for Lula votes for Alexandre de Moraes,” Bolsonaro said.

Bolsonaro also vowed to reshape the court if elected. “I am going to appoint five more justices to the Supreme Court because Alexandre is going to fall,” he said.

The conflict inside the court began Sept. 1, when Mendonça released messages from the cellphone of Daniel Vorcaro, the former owner of Banco Master, a private bank under investigation over claims of a fraud scheme involving billions of reais.

In the messages, Vorcaro asks a contact saved as Alexandre de Moraes for information about the investigation. They also discuss a 131 million reais (about $24 million) contract between the bank and the law firm of de Moraes’ wife.

The dispute escalated Sept. 3, when de Moraes requested an investigation of Mendonça for possible abuse of authority, administrative misconduct and an impeachable offense.

The request cited a Federal Police intelligence report that questioned Mendonça’s impartiality in two investigations: the Banco Master case and a scheme involving unauthorized deductions from retirement and pension benefits administered by Brazil’s social security agency.

On Tuesday, Mendonça removed Federal Police Chief Andrei Rodrigues and the agency’s intelligence chief. Justice Flávio Dino reversed the order the next morning and accused Mendonça of acting in a case in which he had a personal interest.

Later that morning, Supreme Court President Edson Fachin canceled a plenary session, the first such cancellation since 2009. Hours later, Fachin suspended the conflicting orders from Mendonça and Dino, kept Rodrigues in office and halted Mendonça’s investigation of de Moraes. He ordered that any inquiry involving a justice be submitted to him first.

Fachin then removed de Moraes from the fake news inquiry, which the justice had overseen since it opened in 2019 to investigate threats and disinformation targeting members of the court. The inquiry later expanded to include several Bolsonaro allies and supporters. Fachin took control of the case and kept previous decisions in place.

Lula also addressed the crisis Wednesday, calling for the entire Banco Master investigation to be made public and criticizing selective leaks.

“What is needed is more transparency, not selective leaks that affect the election,” Lula said. “Brazil needs to know the truth,” he added.

Recondo said the main risk is an institutional breakdown within the Supreme Court. De Moraes and Mendonça have used judicial rulings to attack and defend themselves, eroding the court’s legitimacy and public perception of its independence and credibility.

“The court’s public image had already been eroding, and this case has made it worse,” Recondo said.

João Feres, a professor at Rio de Janeiro State University’s Institute of Social and Political Studies, said the Supreme Court and the Superior Electoral Court have played a central role in elections since Brazil returned to democracy in 1985. The electoral court administers elections and rules on election disputes. Three of its seven members also serve on the Supreme Court.

The judiciary grew more powerful during the political crises of recent decades, Feres said.

“Once the Workers’ Party began winning elections and became a formidable political force, the right began organizing to remove it from power,” he said. “The right could not win elections, so it worked through other institutions.”

The Supreme Court also curbed attacks on democratic institutions during Bolsonaro’s presidency, Feres said.

“The fundamental theoretical and normative issue is that democracy, to function — or at least to survive and withstand attacks — must rely on institutions that do not directly depend on the popular vote, such as the Supreme Court,” he said.

The October election could also determine the future of the justices involved in the dispute, Recondo said.

Along with the president, Brazilians will elect 54 of the 81 senators. The Senate tries impeachment cases against Supreme Court justices, and removal requires 54 votes.

Recondo said a Flávio Bolsonaro victory could lead to an impeachment effort against de Moraes, especially if senators elect a Senate president aligned with him. If Lula wins and Davi Alcolumbre is reelected as Senate president, de Moraes could be in a stronger position.

Fachin called an extraordinary session for Sept. 15. The full court will consider the report that set off the crisis and the prosecutor general’s request to have it declared invalid.

Courthouse News reporter Marília Marasciulo is based in Brazil.