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The shouting match that forced Chief Justice Edson Fachin to intervene on September 15 broke out between Justices Gilmar Mendes and André Mendonça — and it started right after Gilmar defended Prosecutor General Paulo Gonet from suspicion, then pivoted straight into attacking Mendonça.
- The session ended in a provisional 4-4 tie on whether to merge the Moraes and Mendonça cases; Justice Flávio Dino's request to review the file froze the question with no return date set.
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Moraes's defense rests on a granular claim about phone forensics: of 52 notes federal police pulled from banker Daniel Vorcaro's device, 47 match no WhatsApp exchange at all, and only 5 are linked — by the timing of a screenshot, not by content — to a saved contact.
Below is a justice-by-justice breakdown of the legal reasoning nine members of Brazil's Supreme Federal Court (STF) laid out on September 15 in the case touching Justice Alexandre de Moraes and his contacts with jailed banker Daniel Vorcaro, plus an account of the shouting match between Justices Gilmar Mendes and André Mendonça.
Fachin Bets on the Calendar
Fachin inherited the file because Mendonça himself flagged a colleague with special standing before the Court and forwarded the matter to the presidency, invoking Article 5, item I, of the Court's internal rules. Rather than open a formal inquiry, Fachin called the full bench into session and gave every justice a window to weigh in. To justify keeping the Moraes case separate from the one touching Mendonça, he leaned on Article 80 of the Criminal Procedure Code, which allows splitting cases for a relevant reason, and pointed out that the Mendonça petition — set for a separate hearing on September 23 — was still gathering information the Court hadn't received yet. His framing for the day, translated: "we don't judge people, we judge facts and legal questions."
Gilmar Mendes: Fear of a Backdoor Power Grab
The Court's senior justice didn't just contest the substance — he went after the process itself, arguing the presidency couldn't permanently take over the Vorcaro-messages case without a formal draw, because doing so would edge toward the old practice of an "avocatória," a mechanism for pulling rank on a case that Brazil's 1988 Constitution abolished. He insisted he'd only proposed grouping the files together for organization's sake, never handing the presidency permanent control. He widened the critique into a broader point about selectivity: letting one justice sit on information capable of reaching several colleagues, he argued, creates what he called a "mafia relationship," since it lets someone decide, case by case, who gets scrutinized hard and who doesn't.
Flávio Dino: the Natural-Judge Argument, at Length
Dino delivered the day's longest argument. He held that the principle of a pre-assigned judge applies even at the preliminary-inquiry stage, and that any procedure for investigating a sitting justice has to come from statute and the Court's own rules, not be improvised case by case: "are we going to invent a ritual for a matter this serious?" he asked. He invoked three episodes from Brazilian history to make the point that skipping due process ends badly — the 1954 "Mar de Lama" press campaign against then-president Getúlio Vargas, accusations he called baseless against former president Juscelino Kubitschek, and the 1964 military coup — arguing that whatever procedure applies to Moraes has to apply equally to every other justice named in the Master case, or the Court ends up applying ten different yardsticks to identical situations.
Cristiano Zanin: a Question of Sequence
Zanin built his vote on a decision Fachin himself had issued. On September 12, when he took over as relator, Fachin had noted that the outcome of the Vorcaro-messages case could trigger Mendonça's disqualification under Article 144, item IV, of the Civil Procedure Code. For Zanin, ruling on a possible investigation before knowing whether Mendonça is disqualified would flip the logical order of the proceeding — deciding the second question before the first. He added that the petition, as written, contains only the Prosecutor General's request to void the process, not a request to open an investigation, and that the Court can't expand the scope of the case on its own beyond what the head of the criminal action actually asked for.
Alexandre de Moraes: Three Lines of Defense
Moraes combined procedural and technical arguments. He noted his own petition got a standard five-day window to respond, while Mendonça's case moved on a staggered timeline — proof, he said, of unequal treatment from the outset, and grounds for judging both cases jointly rather than separately. On the technical side, he pointed to figures from federal police's own report: of 52 notes extracted from Vorcaro's phone, 47 don't correspond to any WhatsApp conversation at all, and only 5 were linked — by comparing timestamps, not message content — to a contact saved as "Alexandre de Moraes BRASÍLIA." He also laid out his own timeline: Mendonça had already seized a file named moraes.pdf back on May 18, during a search tied to an allegedly unlawful dossier, and waited three months — until August 24 — before ordering an investigation into him on his own initiative, without a request from either federal police or the Prosecutor General's office.
André Mendonça: Defending Both Origin and Motive
Mendonça flatly denied grabbing the case for himself, saying he acted under Articles 13, item I, and 43 of the Court's internal rules, which he reads as assigning matters touching a fellow justice to the presidency by nature, not by random draw. He explained that what actually triggered his August 24 order was a federal police report tied to the Compliance Zero investigation into the network built around Daniel Vorcaro — a report that flagged two messages with no clear recipient, which investigators had probabilistically linked to then-federal-police director Andrei Rodrigues and to the Prosecutor General. He insisted he'd passed no judgment on the Prosecutor General, and defended his request for information from federal police by citing the Court's own precedent on the role of a garantias judge.
Luiz Fux: No Criminal Case, No Rules on Joining Files
Fux read the situation in strictly procedural terms: in his view, there's no criminal proceeding here yet, strictly speaking — just information that reached the presidency — so the standard rules on connecting or consolidating overlapping criminal cases don't apply. One petition deals with an alleged abuse of authority; the other with evidence touching a colleague. With no rule on the books covering this exact scenario, he argued, it falls to the presidency to decide administratively, which is what Fachin did.
Cármen Lúcia: Deference — and an Apology
Before announcing her vote, Cármen Lúcia apologized to the country for what she called the media circus around the conflict and invoked Justice Celso de Mello's 2013 stand during the mensalão trial on resisting outside and inside pressure alike. Her actual vote reflected institutional deference: she said she defers, as a rule, to whoever holds the relatorship and sets the calendar, which is why she sided with Fachin on keeping the cases apart — though she noted she has, in the past, sent back dismissal requests from the Prosecutor General's office she considered poorly grounded, making clear her position wasn't a rubber stamp.
The Two Who Didn't Vote
Kassio Nunes Marques recused himself, citing his position running the Superior Electoral Court 19 days ahead of general elections and the risk that the ruling could carry political weight; he also denied any personal tie to Banco Master. Dias Toffoli stepped aside for consistency with earlier recusals in the same case, having been the file's original relator before Mendonça took it over.
The Clash Fachin Had to Break Up
It was Gilmar Mendes who lit the fuse. After Gonet took the floor and flatly denied any close relationship with Vorcaro, Gilmar Mendes jumped in to defend him, calling it reckless that "someone of Paulo Gonet's stature suffers this kind of insinuation," before pivoting straight into accusing Mendonça of acting with a "police-officer mentality" alongside a federal investigator, and adding: "it's astonishing, this fellow's shamelessness." Mendonça fired back: "Your Excellency's shamelessness — respect me," raising his voice to add he wasn't crying and wouldn't be spoken to that way.
With both men talking over each other, Fachin tried several times to cut in without success. It was Flávio Dino who demanded a firmer hand from the bench: "policing this session is Your Excellency's job," he told the president, warning that the back-to-back blowups were dragging the Court's image down. He then requested time to review the file, freezing the underlying question of whether to merge the two cases. Fachin collected the already-settled votes from Fux and Cármen Lúcia before suspending the session and announcing the provisional score.
Where the Vote Landed
The provisional tally on merging the two cases came out 4-4: Gilmar Mendes, Dino, Zanin and Moraes voted to combine them; Fachin, Mendonça, Fux and Cármen Lúcia voted to keep them apart. With Dino's file review, the question stays open — Brazilian Supreme Court rules give him up to 90 days to return it, after which it's released automatically for the Court to pick back up.
Taken together, the reasoning from nine justices on a single Tuesday doesn't describe a Court reading one shared rulebook. It describes a bench where opposing camps cite the very same regulations to land in opposite places — and where, on Dino's own telling, it's no longer obvious whether procedure gets chosen on principle or on convenience, case by case.
