Institutional Act 4,781

Since March 14, 2019, and without the commotion sparked by General Arthur da Costa e Silva 50 years prior with Institutional Act No. 5, Brazil has been under the grip of a document that now seems to outweigh the Constitution. This is inquiry 4,781, initiated unilaterally by then-Supreme Federal Court President Dias Toffoli to probe the spread of false news and criticism of the Court on social media. Toffoli bypassed the usual random draw to appoint his colleague Alexandre de Moraes as the rapporteur.

This investigation, dubbed the “End-of-the-world Inquiry,” conducted under secrecy, was recently extended for another 180 days. It has never had a set deadline and is on track to mark its sixth anniversary in 2025, a record in the judiciary’s history. Its unilateral initiation defies the accusatory system, where courts typically act only when prompted. In essence, the Public Prosecutor’s Office never requested this inquiry and might, upon its conclusion by the Federal Police, suggest discarding it on grounds that the Constitution bars the formation of exceptional tribunals. The handpicked control of the inquiry was another “innovation,” as cases are usually assigned through electronic random selection.

Moreover, Article 43 of the Court’s Internal Regulations, which Toffoli cited to launch the investigation, does not actually authorize his actions. The regulation states: “Upon the occurrence of a criminal offense at the court’s headquarters or premises, the president will initiate an inquiry if it involves authority or persons subject to its jurisdiction or delegate this attribution to another justice.” There is no record of any threat or offense committed by anyone at the STF headquarters.

The nation just let it slide. Another document, signed by Alexandre de Moraes, articulates the arguments for the investigation: “The object of this inquiry is the investigation of fraudulent news (fake news), false crime reports, slanderous denunciations, threats, and other offenses characterized by animus calumniandi, diffamandi, or injuriandi, which affect the honorability and security of the Supreme Federal Court, its members, and their families when related to the dignity of the justices, including the leakage of confidential information and documents, intending to attribute and/or insinuate the practice of illicit acts by members of the Supreme Court by those legally obliged to preserve secrecy; and the verification of the existence of schemes of financing and mass dissemination on social networks, intending to harm or endanger the independence of the Judiciary and the Rule of Law.”

This verbose justification included statements from former federal deputies Alexandre Frota and Joice Hasselmann, which took on the guise of “plea bargains” within the STF. “They described an organized group known as the ‘Hate Cabinet,’ dedicated to spreading false news and attacking various individuals and authorities, including the Supreme Federal Court.” Nearly six years on, the country still doesn’t know who the members of this cabinet are or where it held its operations.

By then, Justice Alexandre de Moraes had all he needed. From the outset, he focused on two primary targets: journalist Allan dos Santos, who moved to the United States to avoid arrest, and former federal deputy Daniel Silveira, who remained in Brazil due to his mandate but became a de facto prisoner. Silveira’s case, prosecuted under the extinct National Security Law, featured a unique arrest over a crude online video, especially after he received a presidential pardon from Jair Bolsonaro.

Censorship

Early on, Moraes’ inquiry sent shockwaves through the legal security landscape, revealing its potential as a tool for censorship. The inquiry’s creation date, March 14, 2019, is symbolic: the day before, on the 13th, Operation Car Wash prosecutor Diogo Castor de Mattos published an article on the news outlet O Antagonista, asserting that the STF was plotting to dismantle the operation. The plan was to shift investigations from Federal to Electoral Justice, where they would likely stall, under the guise of campaign finance violations.

Following this, Crusoé magazine was censored in April 2019 over a report mentioning Dias Toffoli, risking a daily fine of R$100,000. Toffoli was implicated in a conversation revealed in Operation Car Wash, under the alias “friend of my father’s friend,” as referenced by contractor Marcelo Odebrecht regarding the Madeira River hydroelectric plants auction. Five years into its investigations, the Federal Police operation was knocking on the Supreme Court’s door, with Dias Toffoli, former Attorney General of the Union, as the prime focus.

“Slander, defamation, and insult will not be tolerated,” Toffoli declared at the time. “Attacking one of us means an attack on us all. Attacking the Electoral Judiciary is also an attack on this Supreme Court.”

“Allow me to use this means for formalization, given that I am outside Brazil. In light of the lies and attacks and the note now released by the PGR (Attorney General’s Office), which I forward below, I request Your Excellency, by authorizing this message to be formalized, the due investigation of the lies recently disclosed by despicable people and sites who want to attack Brazilian institutions.” (Message sent by Dias Toffoli to Alexandre de Moraes on April 12, 2019)

The censorship only lasted a few days; at that time, Brazil was different, and Moraes faced widespread media criticism. He also received a public reprimand from the STF dean, Justice Celso de Mello.

Realizing the inquiry’s implications, then-Attorney General Raquel Dodge twice recommended its closure to Moraes. “There is no more compromising situation to the impartiality and neutrality of judges, which are constitutional principles that inspire the accusatory system.”

“In this constitutional perspective, ensuring the democratic regime, due legal process, and the accusatory penal system, the decision that ex officio initiated this inquiry, designated its rapporteur without observing the principle of free distribution, and gave him instructive powers, broke the guarantee of judicial impartiality in criminal proceedings, besides hindering access of the holder of the criminal action to the investigation,” she wrote. What was Moraes’ response? He ignored the Public Prosecutor’s Office.

Under this inquiry, Alexandre de Moraes ordered the Telegram app to remove posts opposing Bill 2630, dubbed the “Censorship Bill,” which was about to be voted in the Chamber. He claimed it constituted “flagrant and illicit disinformation” and issued a 72-hour deadline to block the platform nationwide. In 2024, he ordered Twitter/X to be offline for a month.

It didn’t stop there. Moraes leveraged the fake news inquiry to, besides and removing two auditors, halting a tax audit of over 130 individuals. Among them was Gilmar Mendes and Roberta Rangel, Dias Toffoli’s wife.

Jornal do Brasil’s cover, December 14, 1968 – Reproduction

O Globo’s cover, December 14, 1968 – Reproduction

Folha de S.Paulo’s cover, December 14, 1968 – Reproduction

Tentacles

Over the years, Alexandre de Moraes not only refused to conclude the inquiry, adhering to due legal process, but made it a blueprint: a dozen other related inquiries were launched—targeting “anti-democratic acts,” digital militias, the January 8 turmoil, etc., all aimed at the right-wing spectrum—politicians, journalists, influencers, businessmen, Operation Car Wash prosecutors, etc. These new inquiries operate in secrecy, meaning neither lawyers nor the Public Prosecutor’s Office know the targets, reasons, or duration. For instance, in the “anti-democratic acts” case, Moraes breached the privacy of ten federal deputies and a senator. Once again, the Public Prosecutor’s Office ordered the inquiry shelved: he complied and immediately opened another to replace it under the name “digital militias.”

Another concerning development that defies legal norms: Moraes communicates directly with the Federal Police command, which, post-Lula’s election, appears even more at his disposal—a political police. This raises another question: if Brazil’s penal system is predominantly accusatory, how can the victim simultaneously serve as investigator and judge? This template inquiry created a legal abomination. Furthermore, it has become a tool for persecuting those who challenge the power consortium entrenched in Brasília, comprising STF justices and President Lula da Silva.

The inquiry inexplicably intertwined with Moraes’ role as president of the Superior Electoral Court (TSE) during the 2022 elections. Everything unfolded there: extensive fines, social media shutdowns, and even the Liberal Party (PL) facing a R$ 22 million fine for questioning the electoral process. Reports from Folha de S.Paulo this year revealed no clear separation between the justice’s offices in the Electoral Court and the STF, which paved the way for even suggesting “creative” penalties for media outlets like Oeste magazine.

In a press conference last Wednesday, the 18th, Deputy Nikolas Ferreira (PL-MG) addressed the issue in the Chamber. The list of targeted parliamentarians is extensive: from Daniel Silveira to Marcel van Hattem (Novo-RS). The latest victim was four-star General, former minister, and public security overseer in Rio de Janeiro’s favelas, Walter Braga Netto (read J.R.Guzzo’s article in this edition). He was arrested last week by the Federal Police under Moraes’ orders.

After so much time, it remains impossible to predict whether these illegal inquiries will conclude next year—or what their outcomes might be. Yet, it’s certain that the ink in Justice Alexandre de Moraes’ pen is not everlasting. History will eventually restore the Praça dos Três Poderes—and, with it, constitutional democracy—to their rightful place.