Without enjoying a privileged forum since leaving the presidency, on December 31, Jair Bolsonaro can see the inquiries opened against him stop at the first instance of Justice. There are also other possibilities, but they require collegiate decisions by the Superior Federal Court or initiatives by the Attorney General’s Office (PGR).
The former president, who has been in the United States since the eve of Luiz Inácio Lula da Silva’s (PT) inauguration, should continue to live in suspense throughout 2023, in the opinion of jurists heard by the Brazil in fact. They also believe that possible punishments for Bolsonaro are closer to being promoted by the Electoral Justice, which could make him ineligible for the next election.
Of the five inquiries present at the STF, four of them were opened during the term of office and the last one was launched this year, due to Bolsonaro’s alleged connections with the January 8 coup attempt in Brasilia. This Wednesday, March 1, one of the cases — which investigates the conduct of the far-right leader during the covid-19 pandemic — was filed by Minister Dias Toffoli.
According to an understanding of the country’s highest court, adopted after a decision by Luís Roberto Barroso in 2018, the natural path of inquiries would be the first instance, which judges crimes against ordinary people, without special jurisdiction. However, in practice, things are not so simple, as indicated by Rodrigo Cyrineu, a lawyer specialized in Constitutional Law.
“I don’t know how they are going to do this, considering that he is a former president of the Republic and the theoretically criminal facts were committed during his term. This is something that the Supreme Court will have to decide. If it were a while ago, I would believe that he would follow this jurisprudence on the issue of criminal order 937, but after the reporting of the investigations by Minister Alexandre (de Moraes), we saw a change in the jurisprudence and it may be that they review this understanding ”, envisions.
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In the opinion of lawyer Acácio Miranda, specialized in Criminal and Electoral Law, there is a great risk that the situation will worsen for Bolsonaro in at least one of the cases, depending on the elements that come to light. The processes run in secret and some of them involve subordinates and people close to the former president.
“It is difficult to determine which investigation will proceed more quickly, because there are several factors to be taken into account in each one of them. But it is important to note that, especially with regard to the anti-democratic acts committed on January 8, if the former president’s intellectual authorship is proven, it is very likely that his preventive detention will be decreed”, emphasizes Miranda.
Aras armor caused the logic to be “inverted”
If, on the one hand, the former president can expect the rigor of the STF judges, especially Alexandre de Moraes, the rapporteur for the cases; on the other hand, it relies on the slowness of the Attorney General of the Republic, Augusto Aras. He did not file formal charges against the former president, which prevents Bolsonaro from becoming a defendant.
Accused of being silent throughout the last term, with the exception of Aras was the request for inclusion of representation against the extreme right leader in Inquérito 4.921, which investigates the instigation and intellectual authorship of anti-democratic acts in Brasília. The attitude was taken after Bolsonaro posted a video on January 10, questioning the regularity of the elections, even after the episodes of violence in the headquarters of the Three Powers. The post, deleted the next day, was archived.
In mid-February, the Deputy Attorney General of the Republic, Lindôra Araujo, asked the STF to close an inquiry involving Bolsonaro for the association made publicly between the vaccine against covid-19 and AIDS. An understanding contrary to that of the Federal Police, which had identified two possible crimes: causing alarm by announcing non-existent danger and incitement to crime.
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Lindôra, at the time, stated: “Although the content of the speech by the investigated Jair Messias Bolsonaro may be controversial and subject to criticism and questioning, there is no incitement to commit a crime. Even if it does not constitute a criminal offense, at no time did the investigated urge the population not to use the individual protection mask”.
It is up to the PGR to take the initiative to investigate and supervise the President of the Republic and other members of the Three Powers, functions that may not be fully exercised. “Perhaps due to the more restrained stance of the current PGR and a more active stance by the STF, the logic ended up being inverted. But, in any case, even though he is the head of the Public Prosecutor’s Office, the prosecutor does not decide anything. He places orders or makes quotas. In the end, who will end up deciding the fate of the actions against the former president is the STF itself”, analyzes Cyrineu.
Miranda, in turn, points out that impartiality has ceased to be a hallmark of the PGR in recent years and believes that the likely choice of a replacement for Aras, whose term ends in September, will also follow the same line. “It is very likely that the next attorney general will be chosen because of his political affinity with the government that will be in power from now on. Consequently, they will tend to act in cases that are favorable to them”, he opines.
Possible change from the Electoral Justice
There is yet another inquiry open at the Superior Electoral Court (TSE), also at the request of Minister Alexandre Moraes. The former president was included in the investigations that investigate the disclosure of fake news and unproven attacks on electronic voting machines and the electoral system.
In that case, Bolsonaro would become ineligible for eight years following the last election he contested. Therefore, until 2030. According to Cyrineu, one must take into account the possibility of the TSE judging the actions in the first instance, making the process faster.
“I have the impression that Bolsonaro will not be able to escape being ineligible, because the actions at the TSE link facts that were widely disclosed in the criminal jurisdiction. Arrests of several people took place, the TSE admitted evidence gathered by other parties, expanding the probative spectrum of these actions. I don’t think he will easily escape punishment from the Electoral Justice. He cannot miss a mandate, because he was not re-elected, so there would be ineligibility”, he explains.
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Although there is mobilization and a strong rhetoric for punishments to the ex-president, the PT-led coalition can soften the pressure for a strategic issue. That’s because he still hasn’t shown signs that he will effectively return to Brazil and has suffered wear and tear within his own bubble. Thus, he could lose more and more strength as the main opponent of Lula and the progressive camp.
“For me, it would be much better if I had an opponent that I already defeated, who proves to be inept on several fronts, that he is not annihilated, put aside, buried. Thus, you make it difficult for another opponent to emerge, someone younger, stronger and occupy that vacuum. If I were the pilot of this coalition, I would not advance the signal and I would leave things the way they are, very comfortable”, projects Cyrineu, who does not see a potential opponent for Lula or someone chosen by him for the next election so far. .
Editing: Rodrigo Durão Coelho
