In the video doomed to define the entry “Brazil” in an updated edition of the “Universal Encyclopedia of Infamy” – sarcasm implied –, Marcelo Odebrecht tells a Federal Police officer about the semi-clandestine frequent contacts between directors of the construction company run by his father, Lula’s long-time friend, as well as about a “mysterious” character he refers to as “the friend of my father’s friend.” At a certain point, Marcelo is asked to reveal the real identity of the friend of the now current President of the Republic. As cool as a cucumber, he unveils the mystery: “It’s Toffoli.”
José Antonio Dias Toffoli was presiding over the Supreme Court when he learned, in the summer of 2021, that the video recorded while he was heading the Attorney General’s Office had been apprehended in one of the many raids conducted during the fight against corruption. On top of that, the incriminating footage was the lead in a series of images, texts, and high caliber dialogues. All in all, it was clear that the investigations triggered in 2015 by Operation Car Wash had reached the vicinity of the judiciary’s summit. “Time to stop the bleeding,” decided the president, already near the end of his term as such. On March 14, 2019, Toffoli revoked the Brazilian legal accusatory system and unilaterally instituted an inquiry aimed at “investigating the existence of fake news, slanderous accusations, threats, and theft of publications without due copyright – offenses that might constitute slander, defamation, and insult against members of the Supreme Court and their relatives.”
On the same day, Toffoli buried the good old procedure of determining through a raffle the justice who would be rapporteur of the suits currently on the docket of the Supreme Court and simply appointed justice Alexandre de Moraes, who had joined the league of 11 “superjustices” less than two years ago, as the new rapporteur. With the first stroke of his pen, Toffoli threw away the Constitution, legal codes, the Court’s internal rules, and principles that had already been the foundation of Justice in the Roman Empire, all at once. With the second one, he turned a Supreme Court newcomer – eager to impress veterans with his hostile, belligerent style already displayed when he was a prosecutor and Secretary of Public Security of the São Paulo government – into the caretaker of a poisoned tree.
Just one month after its start, on April 15, 2019, inquiry No. 4,781 made its purpose crystal clear. Encouraged by Toffoli, still president of the Supreme Court, Moraes ordered Crusoé magazine and O Antagonista website to delete reports that attested Toffoli’s involvement in scandals revealed by directors of the construction company Odebrecht. If the news outlets refused to accept the scandalous censorship and insisted on spreading “fake news,” allegedly fabricated to weaken institutions struggling to defend the Democratic State of Law, the individuals responsible for both would have to pay a fine of R$ 100,000 per day. The immediate reaction of defenders of press freedom and the Democratic State of Law prevented the exhumation of censorship. Nevertheless, such old obscenity would end up being gradually resurrected by people convinced that, for democracy to survive, it must be constantly subjected to ruthless sessions of torture.
Five years later, unrestricted freedom of expression, the right to a full defense, fair legal process, inquiries with deadlines, impartial judgment, individualization of conduct, parliamentary immunity, and access to the case files by the defendants’ lawyers all rest in a mass grave. Citizens found innocent, released by the justice system due to lack of evidence, continue to be held captive by ankle monitors. The “Chief Executioner” restricts the freedom of right-wing supporters by requiring them to sign an agreement confessing to sins they did not commit. While his fierce partner continues to arrest and smash whoever he pleases – even on holidays and holy days –, Toffoli has plenty of time to prove that he is as prepared to be a Supreme Court justice as his boss, Lula, is to be a literature professor.
On November 16, 2021, at a legal gathering in Lisbon, Dias Toffoli announced that the Brazilian Republic had been reformed: “Today we have a semi-presidential system with a moderating power control that is currently exercised by the Supreme Court,” he informed. Excited by such fantasy, he waited for the ideal moment to take vengeance on Crusoé after his failed attack on the magazine. This time, he conceived a much more audacious plan. With two clever moves, he would bury the remains of Operation Car Wash and its counterparts, reiterate his appreciation for the aforementioned “friend,” now back in office, and for the “friend of his friend,” Emílio Odebrecht, now back in command of the construction company that resumed its lucrative business under the new name of Novonor. With a third stunt, Toffoli would make the Batista brothers, owners of the conglomerate J&F, eternally grateful also to his wife, Roberta Rangel, who provides legal services to them.
In just five months, Toffoli’s monocratic decisions slapped three times the face of a Brazil that stays above board. Last year, on September 6, Dias Toffoli nullified countless pieces of evidence of crimes involving Odebrecht-Novonor, which had been obtained in Operation Car Wash diligences. “They are unusable,” raved the justice, always subservient to his delinquent comrades. Toffoli also downgraded the scandal of Petrobras – the most extensive and voracious corrupt scheme to emerge since 1500 – to a mere “setup against Lula.” That was the first slap. The second came on December 20, 2023, when the justice gave J&F’s a Christmas present by suspending the payment of the R$ 10.3 billion fine set in the leniency agreement that freed the Batista brothers from jail. On February 1 this year, his third slap was the release of Novonor from paying the R$ 6.8 billion fine (in current values) established in the leniency agreement that kept chieftain Emílio Odebrecht out of jail.
It’s unlikely that justice Dias Toffoli would have gone this far if he hadn’t been backed by the majority of the Supreme Court and relied on the swindling omission of the Lula government. A few months ago, after finishing reading a book published by Emílio Odebrecht, justice Gilmar Mendes stepped into the spotlight again to declare himself outraged by the torment imposed on the award-wining whistleblowers. “There should be an inquiry to find out what happened,” demanded the dean of the Supreme Court almost shedding a tear. “People were only released, freed, after confessing and making a deal. It’s perverted. Clearly, it was a practice of torture using the power of the state.” Despite seeming appalled by the supposed ordeal of the Odebrecht owner, who did not spend a single minute in jail, Gilmar never saw anything wrong in the dreadful situation the multitude of Brazilians imprisoned on January 8 have been going through. On top of that, the federal government’s deafening silence must have whispered “go ahead” in Toffoli’s ear. The sum he wants to return to the first-class thieves would be enough to finance the missing section to complete Rodoanel (a beltway to alleviate the traffic in the metropolitan area of São Paulo) and the construction of the underwater tunnel that will connect the cities of Santos and Guarujá, on the seaside of São Paulo.
It’s likely that he only discovered he had gone way too far in his delusion on the following morning, when headlines and editorials attested to the astonishment of those who seemed to echo the same motto: “Enough!”; “The award for corruption costs R$ 14 billion to Treasury,” summed up the newspaper Folha de S.Paulo on the front page of the February 3 edition. “The scrutiny of Toffoli’s pen strokes by Congress and the restriction to monocratic decisions are just the most urgent measures to be taken […]. The admission of frauds only a little over seven years ago now gives way to an unashamed revisionism in which those involved in the arbitrariness and authorities unite.”
“The Supreme Court insults Brazilians,” highlighted, on the same day, the title of the editorial on the newspaper Estadão. “The Supreme Court seems to strive to convince citizens that the monumental corruption scheme involving construction companies in Workers’ Party’s administrations was nothing, but a hallucination experienced by an entire country.” The multibillion-dollar worth audacity also impressed foreign newspapers and was mentioned in the report by Transparency International that announced Brazil’s abysmal position in the ranking of the most corrupt countries in the world (see the magazine cover article by J. R. Guzzo). In retaliation, Toffoli ordered the Federal Police to investigate an accusation against Transparency International – a claim that has already been dismissed for not having any legal foundation. The Attorney General of the Republic, Paulo Gonet, appealed the decision to forgive the compulsive sinners who control J&F.
Toffoli’s performance at the Supreme Court is not surprising: he has been placed there to do exactly what he’s been doing. Despite the Constitution’s provisions dictating that only those with notable legal knowledge and unblemished reputation can be justices, the law graduate who failed twice the exam to become a judge in São Paulo was deemed fit to take a seat at the highest court in the country. Now, the reputation of someone who was for years the Workers’ Party’s lawyer, candidate Lula’s lawyer, legal advisor to José Dirceu in Lula’s government, and head of the Attorney General’s Office in the second Workers’ Party administration can be anything but unblemished. It’s just impossible to spend more than a month with the top brass of the party that turned into a gang without doing or witnessing some shady business. It’s up to the other holders of the Judicial Helm to correct the absurdities produced, deliberately or not, by Toffoli – the Patron Saint of Jet-Set Thieves.
Dias Toffoli and all the other justices urgently need to learn that the Moderating Power was born in the Empire and died with it when Dom Pedro II was deposed. There is no place in the Republic for such an antiquity claimed by those who dream of unrestrained power. The Supreme Court also needs to learn that their robe is just a garment that identifies public servants tasked with ensuring adherence to the Constitution and guaranteeing legal certainty. The robe is not a crown. It does not allow anyone imperial powers. Those who think the black cape is the mantle of a monarch have less chance of becoming Dom Pedro III than a king in a deck of cards.
