Action to make Bolsonaro ineligible advances in TSE; defense triggers stf

The most advanced action at the Superior Electoral Court (TSE) to make former President Jair Bolsonaro (PL) ineligible took another step last Wednesday (8), with the testimonies of former Civil House Minister Ciro Nogueira (PP -PI), and Admiral Flávio Augusto Viana Rocha, former Special Secretary for Strategic Affairs of the Presidency. Speaking as defense witnesses, they were called to refute accusations of abuse of power when Bolsonaro gathered foreign ambassadors last year to question the electronic voting machines.

But both said in the hearings that they did not effectively participate in the presentation made by the former president to the diplomats. On the occasion, Bolsonaro recalled the hacker attack on TSE systems in 2018 and criticized the then President of the Court, Edson Fachin, for annulling the convictions of President Luiz Inácio Lula da Silva, in 2021. The decision paved the way for Lula to run for office in 2022.

The action to make Bolsonaro ineligible was presented by the PDT in July last year. It was the first electoral judicial investigation filed at the TSE to try to punish the former president for the suspicions he raised against the electronic voting system.

PDT says Bolsonaro wanted to delegitimize election

The party alleged alleged abuse of political power. The argument for trying to make Bolsonaro ineligible was that the speech against the polls had the final objective of delegitimizing the election beforehand – especially in the event of Bolsonaro’s defeat, as happened. Thus, in the words of the PDT, the “informational disorder” about the means of voting was part of Bolsonaro’s campaign strategy to mobilize voters.

The risk of punishment has increased in recent weeks, especially after the raids on the headquarters of the Three Powers on January 8. The protesters acted motivated by the revolt against Lula’s election and the TSE’s performance during the election, seen as partial, to the detriment of Bolsonaro.

Rapporteur for the action, Minister Benedito Gonçalves, General Inspector of Electoral Justice, has already attached to the file the draft of a decree, seized in January at the home of former Minister of Justice Anderson Torres. The document would suggest that Bolsonaro determine a state of defense in the TSE. The objective would be the “prompt restoration of fairness and correction of the 2022 electoral process” – in practice, to annul Lula’s election, under the premise that the election would have been vitiated, as Bolsonaro already insinuated. But none of that happened.

Action rushes to take advantage of the composition of the TSE more hostile to Bolsonaro

The PDT adopted as a strategy to accelerate the progress of the action to make Bolsonaro ineligible, in the expectation that the trial will take place by May. The idea is to take advantage of the current composition of the TSE, which is more hostile to Bolsonaro. Of the seven titular ministers, four adopted, during last year’s campaign, tough positions in relation to the former president: Alexandre de Moraes, Ricardo Lewandowski, Cármen Lúcia and Benedito Gonçalves.

The rush is because Lewandowski will retire in May and will be replaced by Kassio Nunes Marques, appointed by the former president and who remains loyal to him.

This Wednesday, the PDT lawyers asked that, once the testimony of Ciro Nogueira and Flávio Rocha was concluded, the “evidence instruction” be closed. This is an intermediate phase of the process for the production of evidence and interrogation of witnesses indicated by the parties.

But, to complete this stage, the TSE plenary still needs to decide whether to confirm or reverse the decision of the rapporteur, Benedito Gonçalves, to attach the draft of the state of defense to the process. This trial would have been held last Thursday (9), but was postponed to next Tuesday (14), at the request of Bolsonaro’s defense.

Bolsonaro’s defense struggles to buy time and escape a trap

In the opposite direction of the PDT, the ex-president’s lawyers want to delay the process. For this, they intend to present more witnesses to testify, on the grounds that new facts – such as the inclusion of the draft decree – have become part of the action. The strategy is to prolong the processing so that the case is judged only after Lewandowski leaves the TSE. Behind the scenes of the Court, there is a rumor that the minister can already start preparing his vote in advance to participate in the trial, in case it is scheduled quickly.

Once the evidentiary phase is over, the rapporteur will give the parties 5 days to present their final allegations. This will be the last opportunity for the prosecution and the defense to speak out. Afterwards, a deadline opens for the Public Prosecutor’s Office to give an opinion. With this opinion, Benedito Gonçalves will be able to set a date for the trial.

If all this happens by May, as the PDT expects, it will be a quick processing time for such an action. In general, processes like this tend to move more slowly, dragging on for two or three years.

Bolsonaro’s strategy is to contest accusations also in the STF

In addition to trying to postpone the trial as much as possible, Bolsonaro’s defense has sought to confront the accusations, and not just at the TSE. Last week, the ex-president’s lawyers called the Federal Supreme Court (STF), in an extraordinary appeal, to overturn the R$25,000 fine imposed on his campaign as a result of the meeting with the ambassadors in July. The punishment was applied in actions other than those seeking ineligibility, through representations by irregular electoral propaganda.

The former president’s line of defense in the TSE and in the STF are similar, and touch on constitutional issues. At the head of the team is former Minister of the Electoral Court Tarcísio Vieira de Carvalho Neto. He argues, in the first place, that the meeting with ambassadors, in July – before the official start of the campaign – was an act of government, not to seek votes – proof of this is that the audience was formed by diplomats from other countries, who did not vote in Brazil.

Bolsonaro’s objective, still according to the defense, was just to discuss the Brazilian electoral system and give more transparency to the process. Evidence of this would be the invitation made by Bolsonaro for the then president of the TSE, Edson Fachin, to participate in the event, as well as presidents of other superior courts in Brasília. But none of them attended.

Bolsonaro wanted to improve democratic process, says defense

“All doubts about the electronic voting system were presented, directly and clearly, to the International Community, with openness to the Heads of Powers”, says the appeal taken to the STF.

For the lawyers, by fining Bolsonaro for irregular propaganda, the TSE ministers committed an “error”, “in taking a proposal to improve the democratic process as if it were a direct attack on participatory democracy”.

“What can be seen from the speeches of the represented Jair Messias Bolsonaro, through a serene examination made with the lens of the necessary institutional dialogue and promotion of electoral transparency, is an invitation to improve the system and not an attack on the institutions”, they claimed.

They also say that, at the event, Bolsonaro spoke as head of state, not as a candidate for re-election. Therefore, he should have respected her freedom of expression.

Another defense argument touches on the issue of legal certainty to prevent Justice from making Bolsonaro ineligible. The Constitution says that any electoral law cannot be applied less than a year after its approval. This also applies to new understandings signed in the Electoral Court. According to Bolsonaro’s lawyers, the fine imposed on him represented an innovation in jurisprudence when considering that he would have carried out early electoral propaganda. Until then, for the characterization of this offense, the TSE considered that the politician should ask for a vote or advertise in prohibited places, such as billboards, concerts and on the internet through paid promotion of content.

TSE saw early propaganda in Bolsonaro’s actions

When fining Bolsonaro, however, the TSE considered that it would also be irregular advance propaganda to promote an alleged “delegitimization of the system, based on the construction of false facts”, which would have been committed by Bolsonaro in the meeting with the ambassadors, when questioning the electronic voting machines. .

“It is behavior that is no longer part of the legitimate right to opinion, doubt, criticism and expression, leading to uninformative manipulation, via factual misrepresentation, seriously compromising freedom of information, and with the ability to erode the very legitimacy of the dispute itself. ”, says the plenary decision that imposed the fine.

New interpretation of the TSE should only be valid in the next election

For lawyers, this new understanding could not be immediately applied in these elections to try to make Bolsonaro ineligible. Just as a new electoral law only becomes effective after one year, this new jurisprudence could also only be applied after the same period.

Thus, Bolsonaro’s objective is that, if the appeal is accepted and upheld by the STF, the ineligibility action loses force. But on the Supreme Court, there’s still a long way to go. Although directed to the STF, the appeal must first be admitted by the TSE.

Only then, if sent to the STF, will ministers decide whether it has “general repercussions”. That is, relevant constitutional issues are raised that go beyond the direct interest of the parties involved, with the potential to affect a broader portion of society.

In this specific case, it would mean assessing whether questioning the ballot box is protected by freedom of expression, for example. Once the general repercussions were accepted, the case’s rapporteur would begin the manifestations of the parties and other parties interested in discussing the issue. Only then would he take the case to trial, the date of which depends on the presidency of the STF. It is a process that usually takes many years.