At the STF, Zanin could analyze accusations against Moro and Dallagnol

Should he be chosen by President Luiz Inácio Lula da Silva (PT) for the Federal Supreme Court (STF), lawyer Cristiano Zanin will be able to analyze a crime news in which lawyer Rodrigo Tacla Duran accuses Senator Sergio Moro (União Brasil- PR) and federal deputy Deltan Dallagnol (Podemos-PR) of attempted extortion. The request for an investigation against the two is today in the office of Minister Ricardo Lewandowski, who retires on April 11 and Zanin is the favorite for the vacancy – if appointed, he will inherit this case.

The accusation against Moro and Dallagnol was sent to the Court by the judge of the 13th Federal Court of Curitiba, Eduardo Appio, on March 27, after taking the testimony of Tacla Duran. At the hearing, the lawyer said that he began to be persecuted in Lava Jato, in 2016, and had a preventive detention decreed by Moro, for refusing to pay US$ 5 million to the lawyer Carlos Zucolotto Junior, former partner of the deputy Rosangela Moro (União Brasil-SP), wife of the former judge.

This is an accusation already rejected by the Federal Public Ministry (MPF), due to lack of evidence, which also led the body to reject a collaboration agreement with the lawyer. Moro and Dallagnol also emphatically deny the charge, repeating that it has now been dropped.

In the testimony to Appio, Tacla Duran presented an audio in which a person says that Zucolotto was from “Moro’s office”. Because of the mention of the senator and the deputy, who have privileged jurisdiction, the judge sent the case to the STF, for analysis by Minister Ricardo Lewandowski.

At the Supreme Court, Lewandowski received the case for “prevention”, a situation in which it is up to the minister to analyze the case for having acted in a similar matter within another action. He suspended several criminal actions against Tacla Duran within a case, pending before the STF, in which several other Lava Jato defendants question the evidential value of Odebrecht systems that recorded payments to politicians.

This process – Complaint 43007 – was opened by Zanin himself, as Lula’s lawyer, in 2020, to annul the actions against the president based on the evidence delivered by the construction company.

Since then, the minister has annulled not only the criminal proceedings against Lula, but also the criminal proceedings against dozens of other defendants also denounced based on the Odebrecht spreadsheets. Lewandowski considered that they were null as evidence pointing to a “break in the chain of custody”, that is, lack of guarantee of integrity of the construction company’s data, due to the way they were stored and transported from Switzerland to Brazil after being delivered to the MPF.

After Lula obtained the suspension of his actions, several other defendants began to ask Lewandowski, within the same complaint opened by Zanin, the extension of this decision to their respective processes, including Tacla Duran – the lawyer was responsible for the accusation of money laundering for the Odebrecht, for moving funds into tax havens in the Caribbean. In addition to him, vice-president Geraldo Alckmin (PSB); the mayor of Rio de Janeiro (RJ), Eduardo Paes; the former president of Fiesp Paulo Skaf (MDB); businessman Walter Faria, owner of Itaipava; between others.

If he takes a vacancy on the STF in Lewandowski’s place, Zanin could not report this action, as he was the original author of it – he would be prevented by article 252 of the Code of Criminal Procedure (CPP), which says that a judge cannot judge cases in which previously worked as a lawyer.

But that will not apply to the crime news presented by Tacla Duran. Zanin will be able to analyze the case because Lewandowski withdrew the accusation from the complaint, and determined that the crime news proceed autonomously and confidentially in the STF in the form of a “petition”, a generic procedural class that includes several types of request – in the case of Tacla Duran, so that an investigation into Moro and Dallagnol is opened. The eventual opening of an investigation against both depends on a formal request from the Attorney General’s Office (PGR).

In this new petition, PET 11128, which is being processed in secrecy of Justice, Zanin would not be prevented, because the author of the request, stamped in the header of the process, is Tacla Duran himself, who advocates in his own cause. Therefore, inheriting the processes from Lewandowski’s office, Lula’s former lawyer will begin to analyze Duran’s accusations against Moro and Dallagnol.

It would be another turnaround in Lava Jato. As Lula’s lawyer, Zanin has always fought against Moro’s performance as a judge and Dallagnol as a prosecutor, accusing both of “lawfare”, a term that designates a judicial persecution by State agents. At the Supreme Court, therefore, he would move from being a defense attorney to overseeing an investigation.

Obstacles to investigation in the STF

The opening of an inquiry against Moro and Dallagnol for alleged extortion runs into some obstacles. The first is that the PGR itself already rejected, in June last year, a plea bargain by Tacla Duran with this accusation, due to lack of evidence.

In addition, according to the current understanding of the STF, even with privileged jurisdiction, the senator and the deputy could not be investigated before the Court, because the alleged extortion would have been practiced at the time when they were judge and prosecutor, respectively. Therefore, if investigated, they would respond to the Federal Regional Court of the 4th Region (TRF4).

Precisely for this reason, Moro’s defense asked Appio, on March 29, not to refer Tacla Duran’s accusation to the STF. It didn’t help. The case reached the STF on the same day and, at the end of the afternoon, Lewandowski separated the case in the autonomous petition and asked for a statement from the PGR on the lawyer’s statements.

It is now up to the Attorney General of the Republic, Augusto Aras, to carry out a new analysis. So far, he has not taken a position and it is possible that his statement will be presented after Lewandowski leaves the STF. In that case, it would be up to the new minister to analyze it.

Aras can ask for the case to be archived, as he has already done, but Lewandowski’s replacement, as supervisor of the investigation request, could also suggest to the PGR or even the Federal Police that new steps be taken. This can happen because it will be up to the new minister to analyze the case and define where it will stay: whether it should even go down to the TRF4 or be kept in the STF.

This last hypothesis could only occur in the remote possibility that the alleged persecution of Moro and Dallagnol extended or was related to the current mandate of both – that is, to have, in some way, crossed more than seven years, until the present day. . But even to rule out that possibility, the minister who replaces Lewandowski will be able to deepen the investigation into Tacla Duran’s accusations.

This is because the understanding that only cases that occurred during the term of office and linked to the position of parliamentarian, fixed in 2018, remain in the STF, still raises doubts within the Court. Some ministers understand, for example, that in other cases, which come down, a judge of first instance or second degree judge could never determine the breach of secrecy of a senator or deputy, a task that would have to be submitted to the STF itself.

Thus, even if the case of Moro and Dallagnol goes down to TRF4, any measure from this court could be submitted to the minister who will take over from Lewandowski.

The extension of the case in the STF has the potential to cause political distress to the senator and the federal deputy, not only due to the high exposure of responding to a possible investigation before the Court, but especially if the case is really with Zanin.

There is a way out, however, for Lula’s former lawyer not to stay with the process. Despite not being offside, he could claim suspicion. These are different ways of removing the judge from a case. The impediment is due to an objective cause: for example, having acted in the case in the past, as a lawyer; the suspicion can be declared for subjective reasons: reason of “intimate forum” (which does not need to be exposed or justified) or “capital enmity” with one of the parties.

If appointed, Zanin himself could drop the case for one of these reasons. If he does not, Moro or Dallagnol could ask the STF to suspect him. In that case, the decision to remove him or keep him with the case would be up to the president of the Court, Rosa Weber, or to the plenary, by her decision. This never happened in the Supreme.

What Moro and Dallagnol say about the accusation

On the day of Tacla Duran’s testimony, Moro stated, in a note, that he “does not fear any investigation, but regrets the political use of slander made by a confessed criminal who lacks credibility.”

“This is a person who, after initially denying it, later confessed to professionally laundering money for Odebrecht and had his preventive detention decreed in Lava Jato. Since 2017 he has been making false accusations, without any proof, except for those he himself fabricated. He has been trying since 2020 to make a plea bargain with the Attorney General’s Office, without success. Due to lack of evidence, the procedure in the PGR was filed on 6/9/22,” he said.

On the same day, Dallagnol criticized Appio’s holding of the hearing. “Guess who believed one of the accused who most tried to deceive authorities in Lava Jato? He himself, the Lula judge and media player Eduardo Appio (better known as LUL22), who doesn’t even disguise the attempt to retaliate against those who, unlike him, fought against corruption,” he said.