Toffoli's tears and the silence of those who exposed the Lava Jato farce

Brazilian Supreme Court Justice José Antonio Dias Toffoli cried during Thursday's session (October 23rd) as he was honored by his colleague Edson Fachin for his 16 years of service on the Court. This rare and humane gesture in a court accustomed to cold solemnity was interpreted by many as a moment of genuine emotion—perhaps a relief after turbulent years of attacks, controversial decisions, and political reconciliations.

But Toffoli's tears also evoke a more complex story — a trajectory marked by impactful successes, embarrassing mistakes, and, above all, omissions that still echo in the shadows of Lava Jato.

As a minister, Toffoli was decisive in recognizing the illegalities committed during the operation that, for years, dictated the pace of politics and justice in the country. His recent decisions, in annulling acts and processes based on evidence obtained irregularly, have contributed to dismantling the legal edifice built on abuses and collusion. This shift is seen by many as a belated rewriting of history.

However, Toffoli himself never publicly acknowledged the role of two central figures in revealing these illegalities: police chief Mário Renato Castanheiro Fanton and agent Dalmey Werlang. It was they—and not judges, repentant prosecutors, or investigative journalists—who exposed the core of the farce.

In 2014, Werlang revealed that he had installed a listening device in the Federal Police cell where Alberto Youssef and Paulo Roberto Costa were being held. He believed he was acting under legitimate orders, but later discovered there was no judicial authorization. According to his account, the order came from one of the heads of Lava Jato, delegate Igor Romário de Paula.

The case fell into Fanton's hands — summoned precisely by Igor to "investigate dissidents" within the operation, among them delegates Rivaldo Venâncio and José Alberto de Freitas Iegas. The expectation of the task force leaders was that Fanton would confirm suspicions against his colleagues. He did the opposite: he uncovered the truth, confronted the internal workings of the Federal Police, and revealed the illegality of the wiretapping.

The price was high. Fanton and Dalmey were administratively persecuted, suffered psychological crises, and even today, ten years later, they are facing a Disciplinary Administrative Proceeding that could result in dismissal. Even under Lula's government—the one most affected by Lava Jato—the PAD remains open, like a sword hanging over their heads.

Fanton's wife, lawyer Elioena Fanton, submitted formal complaints to the Federal Police Superintendency in Paraná and to the General Directorate in Brasília. No action was taken. No recognition was given. No tribute was paid.

Meanwhile, Toffoli, who is now weeping in court, never mentioned Fanton or Dalmey in the decisions that annulled the acts of Lava Jato. His votes mention principles, illegalities, and constitutional guarantees—but not the names of those who, within the structure of the State, had the courage to expose the moral abyss of the operation.

Fanton and Dalmey are accused of leaking classified information when they testified before the Petrobras Parliamentary Commission of Inquiry in 2014, revealing the case of illegal wiretapping. Is this a crime or an administrative offense? No. 

Even so, when challenged in court, Toffoli denied habeas corpus to Fanton. In his justification, the minister argued that the appropriate course of action should be a writ of mandamus.

Toffoli has already made mistakes. He erred, for example, when he denied Lula the right to say goodbye to his brother Vavá, who died in 2019, suggesting that the wake be held at a military facility. Lula hasn't forgotten. He also let himself be carried away by vanity, as when he wrote to interlocutors, in a private message revealed by journalist Lauro Jardim, that he "saved the Republic" by dialoguing with Jair Bolsonaro and the military leadership during an institutional crisis.

But it is fair to acknowledge that she showed courage in scheduling, in 2019, the judgment of the Declaratory Actions of Constitutionality (ADCs) regarding the presumption of innocence — a decision that allowed Lula's release. Her predecessor, Cármen Lúcia, had refused to do so, despite pressure from colleagues such as Marco Aurélio Mello.

He also demonstrated courage and commitment to the Constitution by taking on the cases of Tony Garcia and Rodrigo Tacla Duran, who were also persecuted by public officials who, in practice, were led by Sergio Moro, a judge with a political agenda that is now clear.

Still, the contrast is unavoidable: while Toffoli is honored and applauded, Fanton and Dalmey live in silence, exiled within the very institution they swore to serve. The former was retired due to psychiatric damage resulting from persecution and won two lawsuits for moral damages. The latter, also retired, needed psychological treatment.

Neither of them cried in public. Neither gave a speech. Neither received any honors.

Toffoli's tears may reveal the relief of someone who has survived the political tides. But if there's one thing the story of Fanton and Dalmey teaches us, it's that doing the right thing remains an act of courage without guarantees.

Fanton and Dalmey have already paid the price. Those who benefited from their courage have not yet. If they remain silent, the question remains: what are they afraid of?