By Ricardo Brito and Brendan O'Boyle
BRASÍLIA, Sept 4 (Reuters) - An open conflict between justices has engulfed Brazil’s Supreme Court, as it weighs whether to investigate two of its own in what may be the biggest test of its credibility since the country returned to democracy four decades ago.
One of the justices at the center of the conflict is Alexandre de Moraes, whose aggressive pursuit of former President Jair Bolsonaro and his far-right allies over a coup plot had already turned him into one
of Brazil’s most polarizing figures, drawing even the ire of the Trump administration, which briefly sanctioned him last year, citing politicized prosecutions.
The other is Justice André Mendonça, who was appointed by Bolsonaro, and has made public a report that raised suspicions that Moraes made improper contact with a banker who allegedly led a multibillion-dollar fraud, prompting calls for an investigation. Moraes then asked the court to investigate Mendonça for abuse of authority Thursday evening.
"This may be the most dramatic moment in the history of Brazil’s Supreme Federal Court," said Felipe Recondo, a journalist and researcher who has covered the court for decades.
The conflict has rattled campaigns weeks before Brazil's October 4 election, as parties push for judicial reform and try to tie opponents to the scandals.
"It is essential to investigate everyone, without shielding anyone, no matter who it hurts," President Luiz Inacio Lula da Silva, who holds a narrowing lead in polls, said in a social media post on Thursday.
Chief Justice Edson Fachin on Friday gave the attorney general five days to weigh in on Moraes' allegations against Mendonça. The court is also expected next week to decide whether to investigate Moraes.
What the court does next will have broad implications for a tribunal that has played an increasingly decisive and controversial role in government affairs in the past decade, including decriminalizing the possession of marijuana for personal use, barring laws to limit environmental protections, and – perhaps most importantly – arresting a president, Bolsonaro, who still, despite being convicted of threatening democracy, has the support of tens of millions of Brazilians.
Its moves may also resonate far beyond Brazil, as democracies around the world have struggled with a similar dilemma: how to protect courts from political intimidation in increasingly polarized societies while holding judges accountable.
"The Supreme Court can provide some balance in that game," said Recondo. "Remove the Court from that position, and all that remains is conflict. And that is a problem."
Neither Moraes nor Mendonça replied to a request for comment.
AN INCREASINGLY POLITICAL COURT
Allegations of misconduct involving two of the court's most high-profile judges have shaken up a previously calm campaign season a month before the general election.
Conservatives are calling on Brazilians to protest against Moraes during rallies scheduled to happen around Brazil on Monday, a holiday to commemorate the country's independence.
An investigation into a sitting member of the court would be a first and unthinkable a few years ago for a court that has long viewed criticism of its members as an attempt to undermine its authority.
The stakes are heightened amid falling public trust in the court, which polls show has eroded after years of polarizing decisions, as well as news reports about alleged wrongdoing affecting several justices.
Fachin, whose tenure started in January, has signaled a desire to strengthen the court's legitimacy by creating clearer rules for justices' conduct.
But his efforts became more relevant as the allegations against Moraes became more substantial. A federal police report unveiled this week showed text messages disgraced banker Daniel Vorcaro allegedly sent to Moraes, which raise suspicions that the judge warned him of his impending arrest. The report also revealed a contract between the banker and Moraes' wife's law firm.
The court has little room to maneuver, Recondo says, because investigating Moraes risks weakening the institution, but failing to do so could also be damaging by creating the impression it is protecting one of its own.
"So for the court, whatever decision it makes is a bad one," Recondo said.
POLITICAL IMPACT
The clash between Mendonça and Moraes highlights how the court can no longer hide the internal political rifts that are weakening its standing from within, said Rubens Glezer, a law professor at the Getúlio Vargas Foundation.
One person with knowledge of the thinking of justices who are critics of Mendonça told Reuters that the justice may have a political goal. Moraes' scheduled presidency of the court is due for September 2027, but his removal would benefit Mendonça, who is next in line.
The most immediate impact of the crisis could be felt in the October election. Moraes critics frequently portray the judge as aligned with Lula. Moraes oversaw the case against Lula's 2022 opponent Bolsonaro but is formally independent of his government and was appointed by former President Michel Temer.
Lula is trying to create some political distance from Moraes to avoid being tied to the scandal, said two people close to the president, who requested anonymity.
A scandal could boost Senator Flavio Bolsonaro, the son of the former president and Lula's leading competitor, who has claimed his father, under house arrest and barred from running for office, is a victim of Moraes' persecution.
But the senator, for his part, has his own ties to Vorcaro, acknowledging in May that he met with the disgraced banker to secure funding for a film about his father, rattling the markets at the time that saw it as a risk for his own campaign.
Analysts say a Bolsonaro victory could also fuel a push to impeach Supreme Court justices in the Senate.
Still, it remains unclear if the court can gather enough support to start an investigation against any sitting member, as its politicization has made the outcome harder to predict, says Leonardo Barreto of political consultancy Think Policy.
"We're in a moment of great uncertainty."
(Reporting by Ricardo Brito and Brendan O'Boyle; Additional reporting by Lisandra Paraguassu; Writing by Brendan O'Boyle; Editing by Manuela Andreoni and Aurora Ellis)
