Moraes’ decision to open an investigation against Musk bypasses STF rules

The decision by Minister Alexandre de Moraes to open an investigation, at the Federal Supreme Court (STF), to investigate alleged disobedience of its determinations, by the owner of network X, Elon Musk, circumvented a rule in the Court’s rules. According to the regulations, it would be up to the President of the Court, Luís Roberto Barroso, to communicate the case to the Public Ministry. Instead, Moraes chose to launch an investigation ex officio, on his own initiative.

Article 46 of the STF rules states that “whenever he becomes aware of disobedience to the order issued by the Court or its Ministers, in the exercise of his function, or of contempt of the Court or his Ministers, the President will communicate the fact to the competent body of the STF. Public Prosecutor’s Office, providing it with the elements at its disposal to initiate criminal action”. Proposing criminal action means, in this case, criminally denouncing the person who disobeyed a minister, gathering evidence of the conduct.

The next article of the rules, 47, also provides that, if this is not done within 30 days, Barroso must convene the court, in a secret session, to decide what to do. “After the thirty-day period has elapsed, without criminal action having been initiated, the President will inform the Court, in a secret session, for the measures he deems necessary”, says the provision.

Moraes failed to follow this procedure and the Attorney General’s Office (PGR), which represents the Federal Public Ministry at the STF, ignored it. This Tuesday (9), the body recommended that the minister take a statement from X executives in Brazil to find out whether Musk has the internal power to order profiles vetoed by the courts to be reactivated and whether this has already occurred.

Another problem with Moraes’ decision, already pointed out by legal experts, is that there is no evidence that the crime of disobedience would have occurred on the part of Musk and the X network (formerly Twitter). The investigation was opened based on posts in which the businessman announced that he would reactivate profiles of Brazilians blocked on the platform by order of the minister. But, in Brazil, these profiles have not yet been released.

These are the cases, for example, of the accounts of Allan dos Santos, owner of the website Free Tuesday; by Paulo Figueiredo Filho, businessman and political commentator; and the compulsorily retired judge Ludmilla Lins Grilo – all critical of Moraes and the STF and who, currently, publish videos from the United States, where they started to live.

“It’s like it was in the ‘Minority Report‘”, says lawyer Adriano Costa, in a reference to the science fiction film in which the police arrest people based on future predictions that indicate that they would commit a crime. “Musk said he was going to disregard the decisions, but he didn’t. It is mere speculation, which is not a crime. Deciding to open an investigation, ex officio, without provocation, based on a post, without any concrete act of non-compliance with a court decision having occurred, is to transform a criticism into an object of investigation. It demonstrates that the case has more political than legal connotations”, he adds.

A third problem, also pointed out by some jurists, is that, in the case of Moraes’ decisions determining the blocking of accounts, any reactivation would not constitute a crime of disobedience, since the minister set a fine for non-compliance.

According to STF jurisprudence, when a fine is imposed, if a certain court decision is not complied with, there is no crime. “The behavior of a person who, supposedly not complying with the court order addressed to him, is subject to the payment of a fine prescribed with the purpose of compelling him to comply with the precept, does not constitute a crime of disobedience”, says a precedent from 2006. of the Court, in the process of reporting by retired minister Cezar Peluso.

The report questioned Alexandre de Moraes, through the STF press office, about the procedure adopted, but there was no response. The space remains open.

Although approved internally by ministers, the STF’s internal regulations have the force of law. It was a rule of the regiment, in fact, that was the basis for the investigation into the “fake news”, from which the “digital militias” inquiry was derived, in which Musk is now being investigated.

To open the investigation, in 2019, the then president of the Court, Dias Toffoli, used article 43, which allows the occupant of the position to open an investigation to investigate “infringement of criminal law at the headquarters or premises of the Court” – despite this physical limitation , the ministers ended up defining that this would also apply to offenses and threats made outside the Court buildings, such as negative expressions directed at ministers on the internet.

Since the beginning of the case, the law firm that represents X in Brazil chose not to speak publicly about the investigation, only in the investigation files.

This week, X’s lawyers asked Moraes for court orders related to the platform’s operation to be sent directly to the company’s headquarters in the United States. The minister rejected the request with criticism, writing that it bordered on bad faith litigation and would reveal cynicism, since the Brazilian branch of X has been receiving and complying with judicial decisions from Brazilian courts for years.

Ministers unite to defend Moraes

Musk’s criticism of Moraes and the threat of non-compliance with his decisions led other members of the Court to defend him and repudiate the businessman’s attitude. The president of the STF, Luís Roberto Barroso, stated, in a note, that “each and every company operating in Brazil is subject to the Federal Constitution, the laws and the decisions of the Brazilian authorities”, and that judicial decisions “may be the subject of appeals , but never deliberate non-compliance”.

Dean of the STF, Gilmar Mendes expressed solidarity with Moraes, saying, in a statement this Wednesday (10), that Moraes “fills the Brazilian nation with pride, demonstrating, at the same time, prudence and assertiveness in conducting the multiple procedures adopted to defend the democracy”. He added that STF decisions “can be analyzed and criticized, but can never be intentionally violated”.

On the X network, Flávio Dino posted that “insisting on unfounded personal attacks against Minister Alexandre de Moraes, in addition to being an undignified procedure, is harmless”.

Vice-president of the Superior Electoral Court (TSE), Cármen Lúcia also spoke this Tuesday. Presiding over the Court session in place of Moraes, he stated, without citing Musk, that “all natural or legal persons submit to the law of the country and comply with court decisions”.