By MARCUS IANONI & FELIPE MARUF QUINTAS*
The power of the pen is in the hands of the STF
Among the various conceptions of politics, we highlight two, due to their accentuated difference: the Aristotelian one, who sees it as a mode of collective organization destined to achieve the common good and the good life, and that of the Nazi jurist Carl Schmitt, who sees it as a an arena of antagonism between groups, structured in the public dichotomy between friend and enemy. In this sense, the maximum degree of intensity of political antagonism is the elimination of the other, without restrictions regarding the validation of the means, since politics is a sphere of action distinct from morality, aesthetics and economics. This Schmittian conception is based on a profound critique of liberalism, considered as a depoliticized approach to politics.
Former judge Sergio Moro and the Operation Lava Jato task force put Schmitt's conception of the political field into practice in Brazil. In the name of the fight against corruption, the Lava Jatista leadership and the actors united with it from the beginning, the main media at the forefront, staged, above all, spectacular stagings, to win over mass audiences, aiming, through the “justifiable” deterioration of the State of Law, seen, in several aspects, as an obstacle to the fight against “white collar crime”, to scandalize and criminalize politics, but, above all, Lula and the PT. Sergio Moro and his entourage, in which Bolsonaro and the military aligned themselves, operated as a center of gravity pregnant with sequentially birthed tragedies, highlighting the presidential overthrow of Dilma Rousseff, the arrest of Lula and the emergence of the extreme right, which benefited from the political vacancy opened in 2018 by the PSDB and MDB crisis. Even if not all the results were anticipated by the actors, they were nourished by anti-corruption hysteria, which was confused with anti-PTism.
The call Republic of Curitiba, of an oligarchic nature, was organized as a party-state in the Judiciary and in the Federal Public Ministry of the capital of Paraná, endowed with effective decision-making power, and instrumentalized the Law and the judicial institutions to make feasible, at any price, highlighting the destruction of the large national engineering companies and the weakening of the oil and gas production chain, the persecution of ex-president Lula, considered public enemy number one of the juristocratic-salvationist caste. We know that his arrest, in April 2018, aimed to remove him from the presidential race, in which he emerged as the favorite. For those who had doubts, this was proven by Operation Spoofing, the source of the dissemination of messages exchanged between jurists of the 13th Federal Court of Curitiba and the MPF.
By condemning the great PT leader to prison for “undetermined official acts”, Moro presented himself as the Schmittian sovereign, the one who decides on the state of exception. Then, accepting the invitation to head the Ministry of Justice in the government of the then newly elected president Jair Bolsonaro, the main beneficiary of Lula's exclusion from the elections, the former judge took off his illusionist disguise, the toga, and undressed as a political actor, opening up the MMA mobilized against the enemy and the ideological and power interests that leveraged his aberrant criminal procedure.
For yet another of the ironies of history, it fell to Bolsonaro, acting on his own behalf and that of his children, to lead the dismantling of Lava Jato. First, he removed Coaf from the Ministry of Justice, headed by then Minister Moro; later, he denied support for the same key ally's anti-crime bill (in which the illicit proof of good faith); quibbled about a possible nomination of the former judge to the STF; and, even more, appointed to the PGR, disregarding the MPF's triple list, the prosecutor Augusto Aras, a critic of Lava Jato, the operation that had guaranteed him viability in the electoral competition.
Successively frustrated by the former captain, Moro, after just over a year in the Ministry of Justice, resigned from the government, to the jeers of the Bolsonaristas, who, until then, had applauded him. The official closure of Lava Jato, in February 2021, consolidated the break between the Bolsonaro government and the Lava Jato leaders. At the same time, the disclosure of extensive digital documentation of conversations between the members of the task force and the former judge, obtained by a hacker, revealed in detail the procedural fraud, criminal practices, the hidden objectives and the international and delivery connections that used Moro, Dallagnol & Cia to unjustly condemn former President Lula.
But the conjuncture has taken turns, as the world does. The same STF that houses magistrates aligned with Salvationist-Lavajatist legal populism; that prevented Lula from taking office as Chief of Staff of former President Dilma Rousseff, for alleged misuse of purpose and motivation of obstruction of justice, but that allowed Michel Temer to nominate Moreira Franco for the General Secretariat of the Presidency of the Republic; which endorsed the legality of the presidential ousting coup and which, among many other critical behaviors, chickened out in the face of a message on Twitter by Villas Bôas, in 2018, on the eve of the judgment of a habeas corpus of Lula's defense, in short, this same STF has been motivated and pressured to react – especially since last year, due to the attacks it has been subjected to by far-right groups – to the deterioration of the rule of law in Brazil, resuming, to a certain extent, the defense of principles liberals of the 1988 Constitution in the face of Schmittian illiberalism and authoritarianism, which emerged with force in the political process and in the streets, mainly since Lava Jato, gathering supporters in a wide field of interests, those of the economic sphere (neoliberal pro-public policies) , such as Grupo Globo and other business sectors, the military, conservatives (evangelical leaders, middle-class groups) and so on. But, as several of these sociopolitical actors did not give up the mainly anti-PT instrumentalization of the coercive power of judicial institutions and this perspective has supporters in the STF, the surveillance of freedom and civil and political rights, so dear to liberals, today depends a lot on the ideological spectrum running from center left to left. When will Justice not exactly be blind again, but at least make its structural class bias less ostensible to the popular field?
The key moment of the contradictions and reactions of the liberal judicial field was the formal position of Minister Luiz Edson Fachin, taken within the scope of a request for habeas corpus, annulling all decisions of the 13th Federal Court of Curitiba referring to criminal actions against the former President Lula, including the respective convictions, with the four corresponding processes to be restarted in the Federal Court of the DF: the Guarujá triplex, the Atibaia site, the headquarters of the Lula Institute and donations to that institute. The magistrate understood that the facts presented in the lawsuits are not related to the corruption investigations at Petrobras. As a result of the annulment of the decisions of these processes, Lula recovered his political rights, which represented, in addition to a turn towards the rescue of the rule of law, a new fact and of strong impact on the national conjuncture, replacing the PT left and its allies in public debate. In the same decision, Fachin understood that Lula's defense action on the suspicion of former judge Moro lost its object and should be archived.
However, this was not the understanding of the majority of the Second Panel, which, meeting on March 9, the day after Fachin's decision, decided to continue the trial of Moro's suspicion, which had already started earlier. But, more than that, the final result of this judgment was 3×2 against Moro. We highlight two votes, one in favor of Lula, given by Minister Cármen Lúcia, once one of the most staunch supporters of the former judge and minister; and another opposite, that of Kassio Nunes, the most recent member of the STF, appointed by Bolsonaro.
These March waters bathe the April conjuncture, two decisive torrents of impact, which can change the balance of forces and give rise to a recomposition of political alliances between the main actors. If Lula's entry into the field is maintained, the parameters of the electoral and political game in general change a lot.
But the intense political struggle around the institutions and decisions of the State does not cease. The Attorney General's Office appealed against Fachin's decision, asked that the plenary of the STF revert to the previous situation of the cases against Lula, maintaining the competence of the 13th Federal Court, the procedural acts and the convictions. Luiz Fux scheduled the PGR appeal for April 14, when, in fact, the rule of law will be judged. Will Fachin's decision be confirmed by the STF plenary? Will due legal process be effectively freed from Schmitt's deterioration of markedly anti-PT accent? Will the legal order prevail or will the spirit of the state of exception continue to haunt, cower and seduce the STF? Is the law the same for everyone or will it continue to be subject to case-by-case appropriation, as has happened in recent years?
Consistently, the journalist Merval Pereira, to name just one name from Grupo Globo's journalism, who was not satisfied with Fachin's decision, suggested the possibility that he had made a risky maneuver to prevent Moro's suspicion from continuing, but ended up failing in the bet. . There is also discomfort among some generals, considering that Fachin's decision will bring back polarization and "extremism". In this absurd equation of right-wingers looking for the lost center, Lula is almost equal to Bolsonaro, except for the fact that support for the former is inconceivable, but not for the latter.
The pandemic is out of control because of a denialist and irresponsible government. If the institutional actors capable of resisting the national chaos do not fully assume their role on all fronts of action, above all, at that moment, the STF, guardian of the Constitution, which is responsible for establishing itself in the path of defense of civil and political rights and of democracy, the Schmittian state of nature, the cradle of the neo-fascist tendencies that we have observed, will continue to devour the nation. The current PGR has already made it clear that, being instrumentalized by Bolsonarism, it wants lavajatismo to survive selectively against Lula. The power of the pen is in the hands of the STF.
*Marcus Ianoni Professor at the Department of Political Science at the Fluminense Federal University (UFF).
*Felipe Maruf Quintas is a doctoral candidate in political science at the Fluminense Federal University (UFF)
Originally published in the magazine Theory and debate.
