Can newly elected officials be impeached for allegedly encouraging vandalism?

Elected and re-elected parliamentarians who expressed some kind of support for the demonstration that ended in vandalism in Brasília became the targets of requests to revoke the mandate for which they did not even take office. The first attempt to prevent the inauguration was unsuccessful in the Superior Electoral Court (TSE). On the last 19th, the President of the Court, Alexandre de Moraes, rejected a lawsuit filed by lawyers linked to the PT to suspend the inauguration and then impeach three federal deputies and two state deputies victorious in the 2022 elections. Federal Court (STF) still in progress.

The action was filed by the Prerogativas group, an ally of President Luiz Inácio Lula da Silva (PT). Its targets were Carlos Jordy (PL-RJ), Silvia Waiãpi (PL-AP), André Fernandes (PL-CE) and Nikolas Ferreira (PL-MG), who will take office in the Chamber, and Sargento Rodrigues (PL-MG) and Walber Virgolino (PL-PB), elected to the assemblies of Minas and Paraíba, respectively.

In the action against them, the Prerogativas group’s lawyers denounced posts that, in the group’s view, would have encouraged acts of vandalism against Congress, the Federal Supreme Court (STF) and the Planalto Palace, on January 8. “The conduct practiced by the defendants constitutes a cause of ineligibility of a constitutional nature, given that they are incompatible with parliamentary decorum and with the fundamentals (art. 1 of the Federal Constitution) and with the objectives (art. 3 of the Federal Constitution) of the Federative Republic of Brazil”, say the lawyers in the lawsuit.

The petition is short and does not analyze how, exactly, the elected parliamentarians would have encouraged or influenced the behavior of the invaders. He cites, for example, a post by federal deputy Carlos Jordy according to which “terrorism” was practiced by “infiltrated left-wing vandals”, but that the demonstrations took place because of “anti-republican actions by the STF, [de] every abuse of power, [da] interference in elections and [da] release of the bandit [Lula] to contest the election”.

Against Silvia Waiãpi, Prerogativas only reproduced an excerpt from a news article according to which she would have broadcast live, on her social networks, the invasion of the headquarters of the three Powers and that “she still attacked, in her Twitter profile, the work of the Military Police of the DF in the containment of the act”.

Against André Fernandes, an excerpt from the news was attached that he would have called, on January 6, on his Twitter, “the first act against the Lula government”, in the Praça dos Três Poderes. Against Nikolas Ferreira, a post from a third person is presented stating that he would have summoned voters to the act.

Sargento Rodrigues became a target because he would have posted a video of a protester shouting: “Brazil is ours! Everything invaded here, Brazil is ours”. Walber Virgolino, in turn, was accused of posting a video of the invasion, followed by a message in which he said he was against violence and another in which he warned: “The time has come for the elected PT government to reflect on threatening speeches by its ministers, speeches harsh revenge and dictatorial measures against those who do not share left-wing thinking”.

“As can be seen, all the defendants, in a public way, supported the attack committed against Brazilian democracy on the last January 8th”, stated Prerogativas in the action. To try to prevent the inauguration, a device of the Electoral Code was mentioned that allows suspending the effects of diplomacy, which gives the politician the right to the inauguration, for “supervenient” (subsequent) reasons “or of a constitutional nature”. The cause, in this case, would be the lack of decorum, and incompatibility with constitutional values ​​that were not even mentioned.

Why Moraes denied the request to suspend the inauguration of elected officials

The president of the TSE, Alexandre de Moraes, denied the Prerogativas request and listed several reasons. First, he stated that there was no “full demonstration” of “fumus boni iuris” and “periculum in mora” – legal expressions that literally mean “smoke of good law” and “danger of delay”. The first concerns the probability of the right in question – in this case, the defense of the Democratic State of Law – being or not in check, due to the posts. The second requirement, also necessary for accepting the request, is related to urgency. That is, if the decision was not favorable, if there would be any imminent risk. Moraes thought not.

In addition, Moraes considered that Prerogativas did not even have the conditions to present such an action. It would be necessary for some party, coalition or candidate to activate the TSE to revoke the diploma of those elected.

Prerogativas even tried to argue that, after taking office, the new deputies would enjoy parliamentary immunity and would become inviolable, civilly and criminally, for any of their opinions, words and votes. Moraes corrected him: he said that they had already enjoyed this prerogative since the diplomation, which took place in December. There is still an appeal against that decision.

Another path to prevent possession, however, is already being followed in the STF. A request similar to the one filed at the TSE, but now with 11 newly elected deputies, was also filed by Prerogativas within the investigation that investigates the acts of January 8. This Friday (27), without any evaluation of the request, Moraes forwarded it to the Attorney General’s Office (PGR) and the Electoral Attorney General’s Office (PGE) to issue an opinion on the request.

On another front, PGR investigates elected deputies

The deputies who were the target of the Prerogativas group and some other elected representatives, however, are still not free from punishment for the accusation of allegedly encouraging invasions. In the days following the acts, the Attorney General’s Office (PGR), pressured by ministers of the STF, started to call the Court to denounce the participants and investigate possible instigators. Within this group, the PGR presented as suspects Silvia Waiãpi, André Fernandes and also elected deputy Clarissa Tércio (PP-PE).

In these requests for the opening of an investigation, already accepted by Moraes, the deputy prosecutor Carlos Frederico Santos, designated by the PGR to prosecute those involved in “anti-democratic acts”, sought to substantiate in a more extensive way the imputation of possible commission of the crime of incitement to the crime of violent abolition of the democratic rule of law.

To ask for Waiãpi’s investigation, he quoted her post on Instagram with the following sentence: “People take the Esplanada dos Ministérios this Sunday! Seizure of power by the Brazilian people dissatisfied with the red government”, amid videos of the demonstration.

Against André Fernandes, the PGR quoted the same post mentioned by Prerogativas: “This weekend, the first act against the Lula government will take place in Praça dos Três Poderes. We will be there,” wrote the deputy.

The basis for asking Clarissa Tércio to be investigated was the posting of a video in which a woman said: “We have just taken power. We are inside Congress. All people are up here. This will go down in history, the history of my grandchildren, my great-grandchildren”.

Other than these citations, the PGR’s investigation request for the three is identical. It begins by narrating how the demonstration took place, from the day before, with the arrival of dozens of buses heading to the Army headquarters, where demonstrators called for “a military intervention to overthrow the elected government”, until the invasion of buildings, with the destruction of the public property.

For the PGR, “the speech in support and the call for the acts that culminated in the invasion of the seats of the constitutional powers are indicative that the incitement spread by the defendant [deputado ou deputada eleita] through the aforementioned post, it stimulated the practice of the criminal actions narrated above”.

The Attorney General’s Office also argued that, for the crime of incitement to attempt to prevent or restrict the free exercise of the three powers, it is not necessary to prove a cause and effect relationship “between the content of the post and the dangerous situation which effectively led to the injury of the protected legal interest”. Deputy prosecutor Carlos Frederico argued that it is enough for the disseminated content to have the potential to cause violence or a serious threat to the powers that be. Still, he considered that the stimulus contributed to the acts. “The behaviors incited from their publicly disseminated statements have the characteristics to which the aforementioned precept alludes”, he said.

What can happen to deputies from now on

From now on, it will be up to elected deputies to defend themselves in interrogations by the Federal Police (PF), which will also be able to investigate their level of engagement or participation in the demonstration, even if to encourage attendance.

So far, the only one who has already defended herself, even before being subpoenaed, was Clarissa Tércio. Basically, she claimed that she was not in Brasília and that she did not say the phrase attributed to her in the PGR’s inquiry request. She stated that she was staying in a luxury hotel on the coast of Pernambuco and denied having participated in any preparation, organization or financing of the act.

“On the day of the events, as millions of Brazilians did, I limited myself to sharing a video of the regrettable episodes on my account on the social network Instagram, in which I asked for prayers for Brazil. There was, on my part, no support or words encouraging or exalting anti-democratic acts,” he said.

Clarissa Tércio is currently a state deputy and also asked the Pernambuco Assembly Prosecutor to defend her. In a statement sent to the STF, the body, which defends state legislators, considered that there was no breach of decorum. “The expression ‘let us pray for Brazil’ conveyed by congresswoman Clarissa Tercio points to a concern with the situation that was reported and what it would represent for the future of Brazil. There is no indication of the occurrence of incitement or approval of harmful acts”, said the Attorney General’s Office in Clarissa’s defense.

If they are denounced and later convicted in the STF for inciting the crime of abolition of the Democratic State of Law, the new deputies could face a small sentence, of up to six months of detention or a fine. It is a punishment that does not leave the person in prison, as it could be served in an open regime and replaced by the payment of a fine.

When the conviction of a congressman is final, with the exhaustion of resources and the so-called “final and unappealable decision”, the STF can determine the loss of mandate. The impeachment, however, in practice, only takes effect when the Legislative House approves this punishment.

Regardless of criminal conviction, the deputies themselves can initiate an internal impeachment process, for breach of decorum. In that case, the parliamentarian must be the subject of an investigation by the Ethics Committee. It is also necessary to approve the annulment in the plenary, by an absolute majority of votes. In the House, there would be at least 257 votes.