Bolsonaro at TSE: defense contests evidence and sees legitimate speech – 06/26/2023 – Politics

The defense of former president Jair Bolsonaro (PL) in the trial at the TSE (Superior Electoral Court) that could make him ineligible for eight years has as a legal strategy the questioning of part of the evidence included in the process.

In addition, he argues that the meeting held by the then president with ambassadors would have been a legitimate debate, without an electoral character and without seriousness capable of harming the electoral process. The meeting is the central element of the action promoted by the PDT.

At the time, in July 2022, less than three months before the first round, Bolsonaro made false and distorted statements about the electoral process, based on a Federal Police investigation into a hacker attack against the court in 2018. He also sought to discredit electoral court ministers.

In his oral support last Thursday (22), on the first day of the trial, lawyer Tarcísio Vieira, who represents Bolsonaro, said that the speeches of the then president at the meeting may have been made in an “inappropriate, acidic tone”, but called them public institutional dialogue.

Carvalho classified the action brought by the PDT as “impostor and riddled with ideological falsehood” and stated that the political movement represented by the former representative is not on trial. The case analysis session will resume this Tuesday (27), with the rapporteur’s vote, starting at 7 pm.

In its final arguments, Bolsonaro’s legal team questions the competence of the Electoral Justice to decide on the meeting with the ambassadors, arguing that it would be an act of government.

For professor and electoral lawyer Elaine Harzheim Macedo, former president of TRE-RS (Rio Grande do Sul Regional Electoral Court), the content discussed at the meeting attracts the competence of the court.

“Electoral issues were discussed, criticisms of the past election were raised and a value judgment was made about the TSE system, almost as if it were vaccinating for a possible negative result”, he says.

According to the PDT, author of the action, there was a deviation from the purpose of the meeting. Bolsonaro would have used the event for electoral purposes, as attacks on the electronic voting system would be part of his campaign strategy.

Among the evidence, the inclusion in the action of the so-called coup draft of a state of defense decree found in January at the house of Anderson Torres, Bolsonaro’s former minister, has been the target of greater opposition by the defense.

In a first layer, the lawyers say that the draft could not have been included after the object of the action was defined, in this case, the presentation to the ambassadors.

The argument is that there would be “the admission of a new fact, and not a new document”. The controversy in this case is whether the draft would actually be expanding the object of the action or if it would be a new element connected to the object of the action.

The defense cites the trial of the ticket of Dilma Rousseff (PT) and Michel Temer (MDB), in 2017, when the TSE decided by majority to disregard the inclusion of new evidence presented after the action was filed. The material pointed to other suspicions, related to box 2, against the two politicians.

In his report summarizing the process, Electoral Inspector General Benedito Gonçalves, rapporteur for the action at the TSE, writes that the defense renewed questioning of points already decided by the court’s plenary, as is the case of the inclusion of the coup draft as evidence.

Bolsonaro’s defense also alleges that the draft is “useless” to be used as evidence, pointing out that the expertise attests that the document would not have been touched by Bolsonaro and that the only fingerprints found are of people who accompanied the search and seizure carried out by the FEDERAL POLICE.

For Ana Carolina Clève, president of Iprade (Instituto Paranaense de Direito Eleitoral), it would not be appropriate to re-discuss issues already pacified that passed through the collective scrutiny, as a matter of legal certainty.

The electoral lawyer and secretary general of Abradep (Brazilian Academy of Electoral Law and Politics), Luiz Gustavo de Andrade, says that, as the electoral process does not allow appeals against interlocutory decisions, it is possible that the collegiate resumes discussions.

Andrade states that he would agree with the argument if the draft were the only proof of the process, which is not the case. “The draft adds to everything the president has been talking about.”

Ana Cláudia Santano, professor of electoral law and coordinator of Transparência Eleitoral Brasil, the importance that will be given to the draft in the judgment depends essentially on the understanding of the judges.

“There is even a procedural principle that says that it is up to the judge to analyze evidence”, he says.

Evidence included ex officio (without request of the parties) by the rapporteur of the action is also contested by the defense. By determination of the minister, lives on the electoral system made by Bolsonaro in 2021 also became part of the action, as well as documents from other investigations.

Bolsonaro’s defense considers that the minister’s performance exceeded the limits of what the electoral legislation provides, which in Aijes (electoral judicial investigation actions) gives broader powers to the judge, enabling more proactive action.

According to the lawyers, it is not credible that, based on this, action is taken to “make up for the deficient performance” of the PDT, the author of the action.

“You don’t have expansion of the content”, opines Volgane Carvalho, member of the academic coordination of Abradep and servant of the Electoral Justice in Maranhão. “What the test will do is bring elements that confirm that, before the conversation with the ambassadors and afterwards, this environment of disinformation was followed.”

The PDT, by stating that there was a misuse of purpose at the event with the spread of misinformation about the electoral system, accuses Bolsonaro of abuse of political power and misuse of the media.

According to Volgane, when addressing the issue, the TSE should first analyze the content of the speech and assess whether there was delegitimization of the electronic system or whether it was legitimate speech. In the event that it is understood that it exceeds the limit of free expression, the court must then proceed to the gravity analysis.

Bolsonaro’s lawyers maintain that, on merit, he did not commit any electoral offense at the event.

The former president, they say, would have had no intention of interfering with the voter’s will, his role there would be as head of state, with the aim of “opposing ideas and dispelling doubts about the transparency of the electoral process”.

The defense says that Bolsonaro’s conduct does not “have the minimum gravity necessary for the origin of an action of such magnitude”.

For the lawyers, even if it was recognized that there would be sufficient gravity in the act from a qualitative point of view, there is no need to talk about quantitative gravity.

The defense uses, for example, the low abstention in the 2nd round of the election as an argument to say that it was proven that “there was no effect of generalized discredit”.

For Ana Carolina (Iprade), the content of the speech is symbolic and causes an impact, giving the qualitative gravity required to characterize the abuse of political power.

The quantitative aspect, in turn, would be in the fact that the statements were replicated on social networks, losing control over their reach among voters.