Toffoli acts to maintain leniency in anti-Lava Jato group – 02/07/2024 – Power

Minister Dias Toffoli, of the STF (Supreme Federal Court), should try to maintain the judgment of requests to suspend fines from the J&F and Novonor (formerly Odebrecht) agreements in the Second Panel of the court, with a majority of ministers critical of Operation Lava Jato and more chance of maintaining the decision.

Toffoli has been in charge of the case since last year, which initially addressed hacked messages from members of Lava Jato, and acted at that time to obtain this report.

The minister’s decisions in favor of the two business conglomerates have divided the Supreme Court.

On Monday (5), the Attorney General of the Republic, Paulo Gonet, appealed Toffoli’s decision regarding J&F in an attempt to overturn the suspension of the fine, which had been set in 2017 at R$10 billion. The minister’s measure had been dispatched in December.

If the attorney general’s request actually goes to the Second Panel, the chances of the decisions being upheld are greater.

In this scenario, minister Kassio Nunes Marques has been seen behind the scenes as a decisive vote in the possible judgment on the suspension of fines.

The assessment of members of the Supreme Court in private conversations is that magistrates Edson Fachin and André Mendonça, who have a history in favor of Lava Jato, will probably vote to overturn Toffoli’s court order.

Minister Gilmar Mendes, in turn, is seen as a supporter of the suspension of fines. Kassio, therefore, began to be seen behind the scenes as a likely tie-breaking vote in the trial — the minister also has a critical history of the operation.

Before analyzing the merits of the case, the judges must judge the request from the PGR (Attorney General’s Office) for the case to be discussed in the court’s plenary. A majority in favor of withdrawing the class action could force the trial in plenary, with the presence of the court’s 11 ministers.

There is another element that could further embarrass the picture regarding the fines of the two companies. Mendonça told interlocutors that an action that discusses all leniency agreements signed before August 2020 should soon be released to be judged by the STF plenary.

Following Mendonça’s gesture, it will be up to the president of the court, Luís Roberto Barroso, to set a date for the trial.

The process under Mendonça’s responsibility discusses leniency agreements signed before August 2020, when the STF, PGR, Executive bodies and TCU (Federal Audit Court) signed a technical cooperation agreement to act in these cases.

It will be up to the court plenary to define the scope of the decision to be taken in the process under Mendonça’s responsibility. One possibility, in order not to confront the Second Panel, would be to take advantage of the fact that this is a broad action to have a more generic discussion and establish guidelines for agreements of this nature.

Toffoli’s measures reviewing commitments and decisions from the Lava Jato era have aroused criticism. In the most recent episode, on Monday, the magistrate authorized an investigation into the participation of the NGO Transparency International in the collaboration agreement with J&F, a business group owned by brothers Joesley and Wesley Batista, which had not been signed in the operation launched in Curitiba.

The NGO’s global management called the decision retaliation.

In the request to review the suspension of J&F’s fine, the attorney general defended that the case be redistributed by the judge to a colleague or, if he disagrees with this thesis, that he review his position. If he maintains his decision, Gonet asks him to submit the controversy to the court’s plenary.

Gonet seeks the plenary as an alternative to the anti-Lava Jato majority in the Second Panel. To this end, the PGR argues that J&F’s claim should be processed together with the action reported by Mendonça, which generically discusses the parameters adopted within the scope of the operation.

The leniency agreement was signed in 2017 between the company and the Federal District Attorney’s Office.

The head of the Prosecutor’s Office said in his statement that the agreement is the result of Operation Greenfield, originating from an investigation into breaches in the country’s largest pension funds.

He also stated that reversing Toffoli’s decision will prevent “a serious risk to the Brazilian supplementary pension system, with huge losses specifically for Funcef and Petros”, in reference to the two funds targeted by irregularities investigated by Greenfield.

A behind-the-scenes fear at the court is that Toffoli’s decisions could go beyond reducing the fine and that, eventually, they could also serve to nullify evidence against those being investigated in the scope of the actions.

This is because Toffoli stated, in the decision in which he suspended the fines, that dialogues between prosecutors among themselves and with the then judge Sergio Moro raise “reasonable doubts about the requirement of voluntariness” in negotiating the agreement.

In the decisions, the minister mentions that the “information obtained so far in Operation Spoofing”, which includes hacked conversations between members of Lava Jato, “in the sense that there would have been collusion between the prosecuting judge and the prosecuting body” justify the strike of payments.

In this way, there is a behind-the-scenes assessment that, if they reach the conclusion that there was indeed collusion, the process would be vitiated at its origin and could lead to the annulment of all evidence — including cases where there has already been an admission of guilt on the part of those involved. .

Toffoli has been rapporteur for the procedure, linked to Lava Jato, since the retirement of the former rapporteur, Ricardo Lewandowski, now Minister of Justice. The judge acted to inherit the processes relating to messages from Lava Jato members that gave rise to the actions in which J&F and Novonor requested the suspension of fines from the leniency agreements.

The judge asked to take over Lewandowski’s seat in the Second Panel of the STF after his colleague’s retirement. If he had remained in the court’s First Panel, he would not be the current rapporteur of the cases regarding the two groups.

Due to the change of board, Toffoli was left with the processes that were under Lewandowski’s jurisdiction, including the cases of dialogues between members of the operation.

It was based on these conversations that Toffoli stated that “reasonable doubts about the requirement of voluntariness” in negotiating leniency agreements justify the suspension of payment of fines by companies so that they can be recalculated.