Superior Electoral Court (TSE) ministers discuss a legal strategy that could leave President Jair Bolsonaro ineligible for the 2022 election. The information is from the newspaper O Estado de S. Paulo.
The judicial siege is coming to an end after an administrative inquiry opened at the TSE in response to a live broadcast by the president in July, accusing the court, without evidence, of turning a blind eye to evidence of manipulation in electronic voting machines.
In the view of these magistrates, depending on what happens and the tone adopted by Bolsonaro in his speeches, the acts of September 7 could provide even more evidence against the head of the Executive. The prior understanding is that, once a crime is set up, the president may have his candidacy denied by the Electoral Court next year.
The ineligibility strategy is discussed behind the scenes to be used only in extreme cases, of effective risk of institutional rupture, since, in the opinion of politicians, starting an impeachment process now, one year and two months before the elections, would be so traumatic and unfeasible. When the investigation at the TSE was approved, it was also decided to send a criminal report against the president to the Federal Supreme Court (STF), which was accepted and incorporated into the fake news inquiry.
Although the discussion about the legal encirclement progresses behind the scenes, the measure that could give basis to an eventual ineligibility of Bolsonaro is recognized by the ministers themselves as unconventional. The Electoral Court had never opened a similar action, so the speech adopted is that the alternative would only be used in concrete cases of risk to the constitutional order. On the other hand, a TSE minister argues, in a reserved manner, that there has never been such a frontal attack on the electoral system as now and that, therefore, it is necessary to react.
Repeatedly threatened by Bolsonaro, this was the infantry that the members of the highest courts of Brazilian justice found to prepare the counter-coup. “If you want peace, prepare for war,” Bolsonaro said Wednesday at a Navy ceremony in Rio. Yesterday, keeping his tone of threat, the president guaranteed that the acts of September 7 will be an “ultimatum” to ministers of the STF. Bolsonaro’s main targets are Alexandre de Moraes and Luís Roberto Barroso, current president of the TSE, authors of recent decisions that displeased the Palácio do Planalto, such as the arrest of pocketnaristas.
In response to Bolsonaro’s threats, the president of the STF, Luiz Fux, made a tough speech the day before yesterday, stating that the Court will not tolerate attacks on democracy, in reference to the acts of the 7th. “In a democratic environment, public demonstrations are peaceful ; in turn, freedom of expression does not involve violence and threats”, he said. Bolsonaro intends to speak on the holiday in the morning, in Brasília, and follow with a delegation to do the same in São Paulo, in the afternoon.
Unlike criminal investigations against Bolsonaro underway at the Supreme Court, the administrative inquiry at the TSE is considered a more viable alternative as it does not depend exclusively on a complaint filed by the Attorney General’s Office (PGR), headed by Augusto Aras.
In this case, in addition to the Federal Public Ministry (MPF), political parties have the legitimacy to offer representation against the president’s candidacy; and it will be the TSE itself who will judge these requests. The only requirement is that they present proof that Bolsonaro committed electoral crimes.
The administrative inquiry is led by the Inspector General of Electoral Justice, Luis Felipe Salomão, and is currently in the evidence-gathering phase. It is called “Plan C” by those who know its content, precisely because it gathers evidence that can be used by parties to challenge the registration of Bolsonaro’s candidacy. The investigation composes the judicial siege with two other actions to revoke the Bolsonaro-Mourão ticket in the TSE, in addition to four inquiries in the STF that investigate the president’s common crimes.
The focus of the electoral investigation is to verify whether Bolsonaro practiced “abuse of economic and political power, misuse of the media, corruption, fraud, conduct prohibited to public agents and extemporaneous propaganda”.
The law that regulates candidacy registrations states that candidates who “have a representation judged by the Electoral Court against their person will be ineligible”, with conviction in a process that investigates “abuse of economic and political power”. If the plan is put into practice, Bolsonaro would be barred from running for elections for eight years.
Rubens Beçak, professor of constitutional and electoral law at the University of São Paulo (USP), assesses that the subjective content of the ineligibility law when defining abusive conduct allows for the interpretation formulated by members of the TSE. He considers that its application is reckless because there are no precedents and it makes room for disputes. “The participation of the PGR makes the process much more sound, but there is this other interpretation and it seems very plausible. Those who are thinking of carrying out the inquiry by the TSE are probably thinking of speeding up and removing the political influence of the newly renewed PGR”, he said. “It would be a completely unorthodox procedure, because it never happened that way. This will set a tremendous precedent for you to use against other presidential candidates for re-election. It gives disproportionate power to the Electoral Justice.”
Part of the STF ministers assesses that the fake news inquiry could also be a way to stop Bolsonaro for having a wide incriminating potential, but the understanding is that the possibility of Aras filing a complaint against the president is null and void.
The current PGR has already expressed behind the scenes the desire to occupy a vacancy in the STF and, if loyalty to Bolsonaro is maintained, he could be chosen to replace Minister Gilmar Mendes from 2023, in the eventual reelection of the president. In the vacancy opened this year, Aras was passed over by André Mendonça, who is now facing resistance from senators to take over the position.
Join the CartaCapital group on the Telegram