The judge behind the drive to bury Latin America’s biggest corruption probe

The meeting was chaired by President Luiz Inácio Lula da Silva and its uncontroversial focus was disaster relief for Brazil’s flood-stricken south.

But the presence of two guests shunned for years in political circles for corruption, and their proximity to Lula, represented a startling comeback from disgrace.

Seated on either side of the president at the May meeting in Brasília were Joesley and Wesley Batista, the billionaire brothers behind meatpacking giant JBS who had admitted to paying multimillion-dollar bribes during the high-profile Lava Jato — or “Car Wash” — corruption scandal.

For many, their very public return to the fold underlines how comprehensively the legacy of the long-running Car Wash investigation is being erased following Lula’s return last year to the presidency for his third, non-consecutive term. The decade-old bribery probe uncovered widespread graft involving scores of politicians and businessmen during a period when Lula’s party was previously in power.

Much of the work to dismantle the results of the investigation — which recovered billions of dollars from companies involved — has been at the hands of the Supreme Court and, in particular, Justice José Antonio Dias Toffoli.

A former lawyer for Lula’s Workers’ party, Toffoli has over the past year provoked the ire of anti-corruption activists with a series of controversial decisions.

The judge last month annulled all criminal rulings against industrialist Marcelo Odebrecht, scion of construction conglomerate Odebrecht and a central figure in the Car Wash investigation, who in 2016 admitted to offences including bribery and served time in prison.

The US Department of Justice at the time said that Odebrecht and its petrochemicals unit Braskem “used a hidden but fully functioning . . . business unit — a ‘Department of Bribery’, so to speak — that systematically paid hundreds of millions of dollars to corrupt government officials in countries on three continents”. It called the scheme the “largest foreign bribery case in history”.

The overturning of the rulings against Marcelo Odebrecht came on the same day that a panel of Supreme Court judges voted to overturn a 2017 conviction of José Dirceu, a longtime Lula ally and another central figure in the Car Wash probe, on the grounds that a limitation period had expired.

In the past six months, Toffoli has also suspended multimillion-dollar corruption fines levied in a deal with Brazilian federal prosecutors on Odebrecht, the company — now rebranded as Novonor — and J&F, the holding entity of the Batista brothers, who sat with Lula in the meeting in Brasília.

The latter ruling raised claims from activists and opposition politicians of a conflict of interest because Toffoli’s wife had worked as legal counsel for J&F on a separate case.

In response to queries from the Financial Times, the justice’s office said his decisions followed a precedent set by the court in 2022 and were “based on the constitution and the country’s laws”. The suspended fines were currently being renegotiated between the government and companies, it added.

Thomas Traumann, a former government minister who now runs a political consultancy, said: “It is extremely worrisome. What Toffoli is doing is basically trying to erase all the good parts of the Car Wash operation.

“During the last 10 years, there is no doubt that both Brazilian state and private companies improved their compliance. But what Toffoli is doing is saying: ‘You don’t need to care [about being prosecuted for graft] because in 10 years the justice system will just let it go.’”

The scandal dates back to 2014, when the federal police probe uncovered a multibillion-dollar contracts-for-kickbacks scheme involving state-controlled energy group Petrobras, a cartel of construction companies and dozens of politicians from across the political spectrum.

After scores of high-profile arrests, the operation won plaudits for tackling a deeply entrenched culture of impunity among Brazil’s rich and powerful. Later revelations, however, of collusion between judges and prosecutors fuelled claims from those targeted that it was a politically motivated witch-hunt.

After a legally contentious trial, Lula was himself convicted in 2017 of money laundering and corruption and spent almost 600 days in prison, before the Supreme Court annulled his cases and restored his right to run for office.

The president has repeatedly lambasted the probe, calling it the “biggest lie” in Brazilian history and claiming the US had plotted to undermine Petrobras.

Toffoli, who became a justice in 2009 and is likely to serve until his mandatory retirement in 2042, has said that the collusion between judges and prosecutors in the Car Wash operation prevented proper legal process from taking place. 

A source close to the justice said Toffoli had always been critical of the excesses of the Car Wash probe and “the way [the operation] was being done. He never made a secret of it.”

The judge’s wife had represented J&F in an unrelated case and no longer works on behalf of the company, they added. The person said Brazilian law did not require Toffoli to recuse himself from the case in which J&F’s fine was suspended.

But critics have rounded on the fact that Toffoli made his recent moves alone, without the backing of the full 11-member court. So-called monocratic decisions are a common albeit controversial practice in the court.

“A single Supreme Court justice, alone, without consulting anyone, has decided to nullify all proceedings against Marcelo Odebrecht. What is the point of having 10 other justices if no one does anything about it?” said Adriana Ventura, a federal lawmaker with the rightwing Novo party.

She highlighted the abundance of “confessions, recordings and other evidence” unearthed during the Car Wash probe.

The Supreme Court’s reputation is already “remarkably low in popular opinion”, according to Rubens Glezer, a law professor at the Getulio Vargas Foundation. While Toffoli was legally allowed to judge the J&F case despite his wife’s involvement with the company because of court precedent, Glezer said the issue reflected “a culture where the Supreme Court [judges] don’t feel like they need to be publicly accountable”.

Local media have reported a rift on the Supreme Court bench as a result of Toffoli’s decisions, but have said justices are reluctant to speak publicly for fear of jeopardising the solidarity of the court, which is already under sustained attack from Brazil’s far right.

In a recent interview with the FT, Luís Roberto Barroso, the president of the court, said: “I think the Car Wash operation revealed some very important corruption schemes. That was the positive side of it. And there were mistakes and excesses also. So I see it in these two perspectives.”

A poll by AtlasIntel this week showed that six out of 10 Brazilians surveyed disagreed with Toffoli’s decision to annul the Marcelo Odebrecht cases, more than double the number who agreed.

The same research showed Toffoli had the worst public image of all members of the Supreme Court, with 52 per cent of those surveyed saying they had a negative image of him.

In Transparency International’s Corruption Perceptions Index released this year, Brazil dropped 10 positions to rank 104th of 180 countries. Days after the critical report, Toffoli ordered the Berlin-based corruption watchdog to be investigated over claims it misappropriated public resources during the Car Wash probe.

Transparency International denies the allegations and Toffoli’s order sparked concerns that the court was trying to cow its detractors.

“[Toffoli’s] decisions give the public a feeling that Brazil is going backwards,” said Carlos Pereira, a professor of political science at the Getulio Vargas Foundation.

“They generate disappointment, cynicism, disdain for politics itself — that powerful people always get away with it — and this paves the way for populism.”

Additional reporting by Beatriz Langella