The Toffoli factor, Revisited

Opinion, by Michael Royster

SÃO PAULO, SP – In April 2018, the Curmudgeon criticized votes by STF Justice Toffoli designed to ensure that corrupt PT politicians, including several of his friends, did not go to jail. Six months later, Justice Toffoli became Presiding Justice Toffoli, where controversy continues to involve him.

In 2009, President Lula appointed him Justice of the STF, notwithstanding widespread doubts about his lack of professional qualifications – he had twice failed the examination required to become a federal judge. Their friendship had developed during Toffoli’s years as a PT lawyer and his stints as counsel to Lula’s Chief of Staff and Brazil’s Solicitor General – the government’s in-house counsel.

During the Mensalão scandal, Justice Toffoli’s votes would have exonerated almost all the Mensalão defendants. Moreover, he has always voted that convicted defendants cannot be jailed until all their appeals have been exhausted, a route used by corrupt politicians to escape punishment. These positions are highly controversial, but principled.

Fast forward to the present, where Toffoli’s latest actions have called into question his fitness to be a Justice.

First, he ordered the STF to investigate threats allegedly made online against STF Justices. Brazil’s federal public prosecutor immediately pointed out that he has no power to do this: it is a universally recognized principle of justice in democracies that those who investigate crimes cannot judge those accused of the crimes.

Toffoli assigned Justice Alexandre de Moraes the task of carrying out the investigations. Moraes, at Toffoli’s instigation, issued an order to two online publications to take down, forthwith, articles that included testimony from a Lava-Jato cooperating witness.

As Toffoli knows full well, ordering news suppressed before there is any investigation into the legality of their content is the pristine definition of prior censorship. He also knows that prior censorship was common under the military dictatorship, but outlawed by the 1988 Constitution; it has been uniformly condemned by subsequent STF decisions.

Toffoli, when criticized, had the chutzpah to claim, with a straight face, that the removal order was not prior censorship! His argument was that the publications were attacking the STF as an institution, which would, in his view, justify the order.

As pointed out by prosecutors, judges, law school professors, and constitutional lawyers, only someone completely ignorant of the law could make such a laughable claim. Fortunately for the STF, Justice Moraes soon realized the error of his ways and rescinded the censorship order.

The Curmudgeon will now ask a controversial question: Why did Toffoli do this? The articles only identified him as “the friend of the friend” of Emilio Odebrecht, back in 2007, while Toffoli was Solicitor General under Lula.

As Solicitor General, it would have been perfectly normal for Toffoli to have regular contact with Odebrecht, Brazil’s largest public works contractor. There is nothing inherently suspicious about such contact, even if, subsequently, Odebrecht was discovered to have run a massive corruption scheme.

Toffoli cannot credibly deny his long-standing friendship with Lula, nor Lula’s long-standing friendship with Emilio Odebrecht.  It is true that many in Brazil believe that everyone who came in contact with Odebrecht was corrupt – is Toffoli simply fearful of being tarred by that broad brush? Or is he worried that he should recuse himself from voting on the question of imprisonment before all appeals have been exhausted, as the decision will directly affect his friend, former President Lula?

The Curmudgeon does not have an answer.

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