'Lawfare': Alexandre de Moraes' strategy to persecute opponents

In recent years, the Brazilian Supreme Federal Court (STF) has undergone an unprecedented transformation. Under the pretext of combating disinformation and protecting democracy, Minister Alexandre de Moraes has concentrated powers in an unprecedented manner, surpassing the traditional limits of the judiciary.

Through confidential investigations, such as the Fake News Inquiry, which will soon complete six years, Moraes has acted simultaneously as investigator, accuser, and judge, undermining fundamental principles of due process. These investigations — with no defined timeframe and no clear delineation of targets — have become tools of political control, allowing government critics and ideological opponents to be monitored, censored, and even imprisoned without proper legal support.

In this way, the name of Alexandre de Moraes has become synonymous with authoritarianism, judicial persecution, and censorship. However, his actions could be defined by a more precise concept: lawfare — the use of law as a political weapon to delegitimize, persecute, or annihilate political opponents.

This is the conclusion of lawyer and researcher Enio Viterbo, a master’s graduate in history from Salgado de Oliveira University, a PhD in History from the University of Lisbon, and an expert in constitutional and political law. In a study recently published in the Revista Brasileira de Estudos Políticos of UFMG, titled Moraes Damages, Viterbo details how the minister instrumentalized the use of law as a tool of coercion, expanding his prerogatives to target political and ideological opponents, transforming secret, uncontrolled investigations into instruments of repression.

The term lawfare gained prominence in Brazil, especially during the proceedings involving former President Luiz Inácio Lula da Silva. His lawyers, including Cristiano Zanin, now a STF minister, spread the thesis that the accusations against Lula in Operation Car Wash represented a case of lawfare, where the legal system was manipulated for political purposes. At the time, then-judge Sérgio Moro and prosecutor Deltan Dallagnol were accused of collaborating inappropriately to convict Lula, aiming to prevent his candidacy in the 2018 elections.

These allegations were reinforced by leaks of private messages, known as Vaza Jato, which suggested possible bias in the legal proceedings. The content of these messages was used to justify STF decisions that annulled Lula’s convictions, on the grounds that Moro had acted with suspicion and bias. However, these decisions did not exonerate him from the charges but instead annulled the proceedings, allowing him to recover his political rights and run for president in 2022.

In the book Lawfare: Waging War Through Law (New York, Routledge, 2021, 110 p.), co-authored by Zanin, it is argued that lawfare goes beyond the selective application of law, involving a set of organized tactics to consolidate a persecutory apparatus under the pretext of institutional protection. According to Viterbo, although the debate on lawfare lost momentum after the annulment of Lula’s cases, its application remains evident — now, with new targets.

The research identifies six recurring strategies in Moraes' actions:

• Industry of unpayable fines;
• Illegal prosecution assistants;
• Attacks on lawyers;
• Lack of transparency;
• Universal jurisdiction;
• Censorship.

Industry of Unpayable Fines

According to Viterbo, one of Moraes' main coercion tools is the application of disproportionate and, in practice, unappealable fines. The high amounts make judicial contestation unfeasible and serve as a tool of intimidation.

The magazine Crusoé was one of the first victims of this strategy. At the beginning of the Fake News Inquiry, it was fined R$ 100,000 despite complying with the judicial order that required the removal of an article about Minister Dias Toffoli. Later, the fines started targeting large technology platforms. Telegram was fined R$ 1.2 million for failing to remove content from Deputy Nikolas Ferreira. Similarly, X (formerly Twitter) paid nearly R$ 30 million in fines to have the social network unblocked in Brazil.

During the X block from August to October 2024, a more drastic decision was made with the prohibition of VPN usage to access the platform, directly affecting ordinary citizens. Moraes imposed a fine of R$ 50,000 per day on any user caught using a VPN to bypass the block and access X. Besides imposing a daily fine 30 times higher than the Brazilian minimum wage, the illegal and disproportionate measure criminalized a tool widely used for online privacy protection.

The Liberal Party (PL) was also targeted by this strategy. During the 2022 elections, the party presented a technical report pointing out irregularities in the electronic voting machines. Moraes' response was a fine of R$ 22.9 million, followed by the blocking of the Party Fund, which hampered the party's financial functioning. The request for installment payments was denied, with the justification that the punishment should have a "pedagogical effect."

According to Viterbo, fines are applied broadly and without clear criteria, affecting everyone from large tech companies to ordinary citizens, such as journalists and professionals. The logic of excessive punishment has a direct effect: self-censorship and the fear of contesting judicial decisions, creating an environment of institutional repression where freedom of expression and the defense of fundamental rights are constantly threatened.

Use of Illegal Accusation Assistants

Another essential element of this lawfare model is the acceptance of petitions from third parties without procedural legitimacy to act in the investigations. When the Attorney General's Office (PGR) refused to accept certain demands, the minister allowed political figures, such as Senator Randolfe Rodrigues (former PSOL, now PT), to informally take on the role of accusers.

In one of the most emblematic cases, Randolfe petitioned for the Presidency of the Republic to clarify the actions of Carlos Bolsonaro during an official trip. Even though there was no formal connection to the investigation, Moraes accepted the request and took action, setting a legally contestable precedent. This tactic allows political actors to use the STF as a tool for persecuting adversaries, disregarding traditional procedural rules and increasing the influence of external agents in investigations.

Another similar case reported in A Investigação is that of journalist and linguist Letícia Sallorenzo, known as "The Witch," who informally worked on the activities led by Moraes. Despite holding no official position in the Superior Electoral Court (TSE), she presented herself as an "informal collaborator" of the institution and maintained direct interaction with the minister's staff.

Messages revealed by Glenn Greenwald and Fábio Serapião in Folha de S.Paulo show that Letícia influenced decisions related to censorship and the removal of content critical of the STF and TSE. Internal sources of the court claim that she forwarded dossiers about critics of Alexandre de Moraes and directly pressured the minister's team to have certain profiles and posts removed from social media.

Letícia is responsible for spreading the firehosing thesis (an informational flooding strategy) in Brazil, which served as the basis for the entire narrative of the alleged coup built by the Federal Police. The concept was created by the RAND Corporation, an American think tank funded by U.S. government agencies, including the Department of Defense.

Attacks on the legal profession and restriction of prerogatives

For Viterbo, the practice of law has become an unprecedented challenge in investigations under the responsibility of Alexandre de Moraes. Reports from lawyers being barred from accessing case files, prevented from visiting their imprisoned clients, and even fined for performing their duties have become increasingly common. One of the most emblematic cases is that of lawyer Paulo Faria, who defended former deputy Daniel Silveira.

Faria was fined twice, for R$ 10,000 and R$ 2,000, simply for appealing judicial decisions, a basic right of the defense. Later, when requesting access to the case files and the conversion of physical processes to digital ones, he faced further threats of sanctions for "bad faith litigation." According to Faria, Moraes “works behind the scenes to intimidate, coerce, and threaten parties and lawyers.”

Attacks on the legal profession also manifested in imposing restrictions on contact between prisoners and their defenders. In the case of Roberto Jefferson, Minister Alexandre de Moraes initially imposed severe limitations on prison visits, requiring prior authorization even for lawyers, which sparked strong criticism. The restriction was interpreted as a direct violation of the Advocacy Statute and the Federal Constitution, which prohibits the isolation of prisoners, even in exceptional situations such as a state of defense. Due to the negative backlash, Moraes reviewed his decision.

In addition to restrictions on contact with clients, lawyers face obstacles in accessing case files. Moraes ordered that specific cases be processed physically, making it difficult for lawyers from outside Brasília to follow the cases. Even when authorization was granted, there were unjustified delays in allowing access to documents, making it practically impossible to provide adequate technical defense. In some cases, lawyers only gained access to the files months after requesting them, violating the principle of due process of law.

The investigations conducted by the STF also demonstrate a flagrant violation of professional secrecy. In the inquiry about alleged attacks on the minister’s family in Rome, Federal Police officer Hiroshi de Araújo Sakaki attached to the case transcriptions of private conversations between lawyers and their clients, a practice that violates the confidentiality guaranteed by law. Furthermore, there are cases of lawyers being prevented from making oral arguments in the STF or having their speaking time arbitrarily reduced, directly harming their clients.

Although, to date, no significant action has been taken by the Brazilian Bar Association (OAB), indicating that the institution remains passive in the face of the STF's arbitrariness, the OAB has received numerous complaints about Moraes’ actions. Paulo Faria filed four complaints with the OAB against the minister's conduct.

In August 2024, lawyer Ezequiel Sousa Silveira filed a complaint with the General Ombudsman of the Federal Council of the OAB, pointing out the abusive and illegal use of state apparatus by Minister Alexandre de Moraes and his assistants at the STF and TSE to persecute political adversaries. The complaint cites violations of the Law of Abuse of Authority (Law No. 13,869/2019) and crimes of responsibility provided for in Law 1079/50, requesting intervention from the Public Prosecutor's Office, the Federal Senate, and the National Justice Council (CNJ) for the opening of procedures against Moraes and his assistant judges. According to Silveira, there has been no response from the OAB to this day.

Abuses against the legal profession and interference from the Judiciary in defense are common characteristics in authoritarian regimes, where the state uses its apparatus to undermine the right to a defense. Moraes’ stance, while weakening procedural guarantees, contributes to consolidating an environment of fear among lawyers, journalists, and citizens who dare to question his decisions.

Lack of Transparency

Another mechanism used by Minister Alexandre de Moraes to restrict the right to defense is the difficulty of accessing the case files, creating an environment of total lack of procedural transparency. The Fake News Inquiry (4781/DF), for example, is physically processed, an uncommon and unjustified choice, imposing an excessive burden on lawyers, especially those who do not reside in Brasília. Without digital access, defenders must constantly travel to the capital to consult the case files, making the defense work more costly, bureaucratic, and inefficient.

Moreover, even for those who manage to be physically present at the STF, access is not guaranteed. Moraes requires that lawyers go through a "qualification" procedure, which consists of a prior and subjective analysis of who may or may not access the case files. This process, in an inquiry that has already lasted more than six years and contains thousands of pages, is slow and serves as an almost insurmountable barrier to the defense. In practice, lawyers are prevented from acting while awaiting approval, being at the mercy of the minister's unilateral decisions.

The Federal Prosecutor’s Office (PGR) has also denounced the lack of transparency in the Fake News Inquiry, arguing that the model adopted by Moraes violates due process. The inquiry was initiated ex officio by the STF, without the Public Ministry’s provocation, and conducted without the effective participation of the PGR, compromising the impartiality of the investigations. This concentration of power in a single judge goes against constitutional principles of the natural judge and creates a system in which Moraes simultaneously acts as investigator, accuser, and judge.

The lack of random assignment for the assignment of inquiries has also been criticized by experts, as it allows Moraes to self-appoint to conduct high-impact political cases without any objective criteria. This contradicts procedural rules that ensure impartiality of the judge and increases the risk of selective legal persecutions.

Despite repeated complaints from lawyers, Moraes has ignored Binding Precedent No. 14 of the STF, which guarantees unrestricted access to case files for qualified lawyers. Refusing access to the processes makes it impossible to formulate defense strategies and leaves the investigated individuals in an indefensible legal limbo.

The maintenance of these procedural barriers reinforces the arbitrary and authoritarian nature of the inquiries led by Moraes. The lack of transparency, the impediment to the practice of law, and the centralization of power consolidate a model of institutional repression, where justice becomes a tool for political persecution.

Universal Jurisdiction

The expansion of the jurisdiction of the Supreme Federal Court (STF) under the leadership of Alexandre de Moraes has resulted in what experts have come to call "universal jurisdiction." The minister, who should operate within the limits established by the Constitution, has begun conducting investigations that exceed the traditional scope of the Court, targeting ordinary citizens, businesspeople, military personnel, lawmakers, and even international figures like Elon Musk. The justification for this expansion always revolves around an alleged "connection" between different inquiries, allowing any individual or entity to become the subject of investigations led by the minister.

This practice has direct consequences for the Brazilian legal system, as the STF, as the highest judicial body, should not be the first to judge ordinary people. However, by attracting cases that would typically be handled by lower courts, Moraes undermines the possibility of appeals and a balanced due process, since his decisions become final without the possibility of review by lower courts.

Another example of the impact of this jurisdictional expansion is the case of those arrested on January 8th, who were denied habeas corpus on the grounds that such a request cannot challenge individual decisions of STF ministers. The Supreme itself has established a precedent, based on Binding Precedent No. 606, that habeas corpus cannot be filed against acts of its ministers, making any contestation practically impossible. In practice, this means that an ordinary citizen can be investigated, prosecuted, and have their freedom restricted directly by the STF with no access to appeals in lower courts.

Even within the STF itself, appealing such decisions is nearly impossible. The minister who decides a case unilaterally also has the power to block any attempt at an appeal, preventing the matter from being reviewed by other ministers. The only recourse would be to appeal to Alexandre de Moraes himself, who would unlikely change his own decision. As a result, a system is created where a single judge can issue arrests and restrictions without any real possibility of challenge.

This dynamic transforms the STF, and specifically Moraes's office, into the sole instance for rulings, eliminating essential safeguards of due process. The lack of objective criteria for connecting inquiries allows the minister to decide, without external oversight, which cases he will take on as part of his jurisdiction. This model, in addition to compromising the impartiality of justice, sets a dangerous precedent for using the judiciary as a tool for political and social control.

Judicial Censorship

The use of censorship as a tool of repression became evident from the early actions of the Fake News Inquiry. Under the pretext of combating "disinformation," judicial decisions began to remove content arbitrarily, often without the targets even being aware of the accusations or having the right to defend themselves.

The first high-profile case involved the magazine Crusoé, which published a report about an alleged misconduct by minister Dias Toffoli. After a phone call from Toffoli himself, Moraes ordered the immediate removal of the article, arguing it was "fake news." When the magazine proved the document was real, it had already been fined thousands of reais. This episode drew international criticism but was just the beginning of the STF's systematic use of censorship.

Since then, this practice has intensified. During the 2022 elections, Alexandre de Moraes, then president of the TSE (Superior Electoral Court), ordered the secret removal of content and the blocking of journalists' and influencers' profiles. The list of those censored included names like Luciano Hang, Jovem Pan, Gazeta do Povo, Brasil Paralelo, and even economist Marcos Cintra, a Bolsonaro critic. In many cases, accounts were suspended without notification, preventing those affected from appealing. For example, Hang's profile remained blocked for two years without concrete evidence of wrongdoing.

The politicization of censorship became even more evident when the press revealed messages from TSE and STF aides discussing strategies to justify actions against Revista Oeste. In one of the conversations, it was suggested to "use creativity" to find something that could substantiate a punishment against the media outlet. This model of demand-based censorship was repeated many times. In the case of Rádio Jovem Pan, for instance, the TSE prohibited any commentator from mentioning Lula's "exoneration," under the threat of a daily fine of R$ 25,000.

The Twitter Files Brasil revealed internal documents from X (formerly Twitter) showing that the TSE and STF not only ordered content removals but also demanded personal data from users without judicial orders. In one specific case, the TSE asked Twitter to disclose IPs and identities of users who used certain hashtags. Twitter's legal department warned that such demands violated the Internet Civil Framework, yet the orders were still complied with.

Another significant incident was the prior censorship imposed on the documentary Quem Mandou Matar Jair Bolsonaro? (Who Ordered the Killing of Jair Bolsonaro?), produced by Brasil Paralelo. The TSE ordered its removal from all platforms even before its release, citing the potential to influence the elections. This model of preventive censorship was also applied to O Antagonista, which was banned from mentioning investigations into alleged links between criminal factions and the Workers' Party (PT).

Censorship also extended to independent figures. YouTuber Monark, for example, was subjected to systematic bans and, after repeated sanctions, left Brazil. In the case of former Congressman Homero Marchese, his account was blocked simply for sharing public information about the schedules of STF ministers. When his lawyers attempted to appeal, they only discovered the decision 17 days later, when they called Moraes's office.

Censorship, once limited to exceptional measures, has become a continuous mechanism for controlling the public narrative, consolidating an environment where political criticism can be silenced at any time.

The STF as a Political Tool

During a public hearing on the implications of the decisions made in the context of Inquiry No. 4.781, the Fake News Inquiry, convened by federal deputy Júlia Zanatta (PL-SC) in December 2024 at the Constitution and Justice Committee of the Chamber of Deputies, Viterbo presented his research and provided a detailed analysis of the institutionalization, by Alexandre de Moraes, of the use of lawfare, applying it systematically in his investigations. The use of the law as a tool for political repression has proven ineffective in curbing extremism and, paradoxically, has contributed to the radicalization of the political and social environment.

Viterbo also highlighted the political actions of the STF and Moraes. The political involvement of the STF and the TSE in the 2022 elections was explicit and undeniable. Under the pretext of combating disinformation, the TSE implemented a series of measures that resulted in content removals, profile blocks, and demonetization of communication channels, disproportionately affecting one side of the political dispute.

For Viterbo, however, partiality became even more evident after the election when STF and TSE ministers participated in a celebration to commemorate Lula's victory, organized by the future first lady, Janja, at the residence of lawyer Antônio Carlos de Almeida Castro, known as Kakay. The event, which gathered prominent judicial figures such as Alexandre de Moraes, Ricardo Lewandowski, and Dias Toffoli, also saw the presence of influential politicians aligned with the new government.

While this text was being edited, I came across the following news about a new dinner that will bring together STF ministers and President Lula. On X, influencer Ivanildo Terceiro made the following comment, mocking the situation: "The judges who will judge Lula's main opponent invited him to a dinner. They must be discussing football and the weather, certainly."

In addition to their presence at festive events, public statements from the ministers themselves have laid bare the political engagement of the Supreme Court. During the presidential diploma ceremony, TSE Minister Benedito Gonçalves was caught whispering to Alexandre de Moraes: "A mission given is a mission accomplished." On another occasion, Gilmar Mendes declared, "Lula was elected only because of a decision from the STF." At an event by the National Union of Students, Luís Roberto Barroso went even further, stating, "We defeated bolsonarism," admitting that the Court did not see itself merely as a mediator but as an active participant in the political dispute.

Beyond judicial decisions that directly impact the electoral scenario, ministers participate in public events, such as inaugurations and political meetings, and frequently make statements to the press on various topics, often anticipating their views on cases that have not yet been judged. This expansion of power is also seen in interference in the Legislative branch. Under the justification of parliamentary inaction, the STF encroaches upon Congress' responsibilities, proposing guidelines for regulations and, when not approved, imposing them through judicial rulings. The case of the Fake News Bill illustrates this phenomenon: after the proposal faced resistance in Congress, Moraes began directly imposing restrictions and sanctions.

According to Viterbo, instead of pacifying the country, selective persecution and state censorship fuel distrust in institutions and escalate tensions between political groups. For him, the practices adopted by Alexandre de Moraes have profoundly altered the balance of power between the Three Branches. The STF, which should act as the guardian of the Constitution, has been used as an exceptional tribunal, where political opponents become targets of endless investigations, subjected to censorship, and punished with abusive fines.

The instrumentalization of the Judiciary for political purposes has become a central element in the state's repression structure, compromising the principle of impartiality and legal certainty. Maintaining this legal state of exception represents one of the greatest challenges to Brazilian democracy, requiring a broad debate on the limits of the STF's power.

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