Toffoli Issues Mandate to Federal Police Over Operation Spoofing Files and Odebrecht Leniency Agreement
In a landmark ruling, Justice Dias Toffoli of the Brazilian Supreme Federal Court has issued a stern ultimatum to the Federal Police, demanding compliance within ten days to share the hacked messages from Operation Spoofing. These messages, pivotal to the ongoing legal discourse, contain dialogues between Lava Jato prosecutors and former judge turned senator, Sergio Moro. The Federal Police is required to present "the full content of the seized messages, including all attachments and annexes, without any cuts or filtering" to all defendants prosecuted by the individuals identified in these communications. This ruling comes in response to a petition filed by President Luiz Inácio Lula da Silva’s defense team.
Toffoli has also directed the 13th Federal Court of Curitiba and the Federal Public Ministry of Paraná to release "the full content of all documents, attachments, annexes, and proceedings related to the Odebrecht leniency agreement" to Lula’s defense within ten days, or face charges of disobedience. Furthermore, he has instructed a range of federal entities—including the Attorney General’s Office, the Federal Revenue Service, and the National Council of Public Prosecutors—to identify public officials who participated in the Odebrecht leniency process without following formal procedures. The Attorney General’s Office (AGU) responded by announcing the formation of an internal group to investigate potential deviations by public officials and assess the damages caused by the decisions of the 13th Federal Criminal Court in Curitiba, as well as actions by Federal Public Prosecutors tied to the Lava Jato operation.
Disagreement and Historical Context
Toffoli articulated that the reasons for deeming the evidence obtained from the Odebrecht leniency agreement inadmissible are objective and transcend Lula’s individual case. The agreement, which implicated Brazil’s then-largest construction enterprise in a multilateral bribery scandal involving funds divisions between Brazil, the USA, and Switzerland, lacked proper legal formalities. Specifically, Toffoli noted the absence of international legal cooperation requests necessary to legitimize the evidence obtained from Odebrecht’s systems. He added that negotiations with foreign authorities and individuals operated outside legal frameworks, compromising the technical integrity and chain of custody of the prosecution’s evidence.
Prosecutors and judges from Curitiba, bypassing essential official bodies such as the AGU and the Ministry of Foreign Affairs, sent state resources abroad without necessary authorization. Toffoli underscored that the Operation Spoofing Telegram leaks have not been fully disclosed to the Supreme Court, amplifying concerns about procedural irregularities between the prosecution and judiciary.
Ruling Continuation
This ruling builds on a 2021 decision by retired Justice Ricardo Lewandowski, who declared the evidence from the Odebrecht leniency agreement inadmissible in matters concerning Lula. The Supreme Federal Court’s 2nd Panel upheld this stance. Subsequently, Toffoli inherited the cases following Lewandowski’s retirement and has seen various defendants—from Vice President Geraldo Alckmin to former Rio de Janeiro governors—successfully appeal their convictions, citing the questionable use of this evidence. Toffoli has also ordered the dissemination of data obtained in Operation Spoofing.
According to the Federal Public Prosecutors Ministry, the My Web Day and Drousys systems, pivotal in the cases against Lula, were found to contain inconsistencies. Federal Police experts noted anomalies such as documents with dates later than their seizure in Switzerland. Additionally, communications between Lava Jato prosecutors, revealed by hackers and seized by Federal Police, indicated that crucial materials were transported in supermarket bags.
Judicial Gravitas
Describing Lula’s 2018 imprisonment as "one of the biggest judicial errors in the country’s history," Toffoli characterized the case as a "setup" by public officials aiming to "take control of the state through seemingly legal means." He starkly depicted the conspiracy as "a serpent’s egg," hatched by authorities who abused their roles. Toffoli accused those involved of violating due process, manipulating evidence, and operating beyond their jurisdiction, terms resonant with historical instances of judicial overreach.
Toffoli further criticized the broad ramifications of the Lava Jato operation, accusing it of indiscriminately targeting individuals and entities, thereby undermining national interests. He cited the case as an instance of judicial bias and collusion, adding that the systemic errors likely tainted numerous other proceedings.
In conclusion, this consequential ruling by Justice Toffoli not only challenges past evidentiary practices but also mandates sweeping transparency and accountability measures within Brazil’s justice system.
This article, published in CONJUR, was translated from its original Portuguese by Brian Mier and can be read in its original language here.
