Dallagnol’s impeachment contradicts law and jurisprudence, and brings insecurity

The decision of the Superior Electoral Court (TSE) that annulled the mandate of former prosecutor and federal deputy Deltan Dallagnol (Podemos-PR) circumvents an objective rule of the Clean Record Law, goes against the Court’s consolidated jurisprudence and still brings enormous legal uncertainty, It can now be used in a cunning way to persecute other members of the Public Ministry and the Judiciary who consider leaving office to run for office.

This is the view of several jurists who analyzed the process and attended the judgment this Tuesday (17) that made Dallagnol ineligible because of preliminary procedures, presented by political opponents or allies of people who had been investigated, but who were stuck in the National Council of the Public Prosecutor’s Office (CNMP), including by archiving.

The case’s rapporteur, Benedito Gonçalves, voted for the impeachment, considering that these procedures “could” result, in the future, in a dismissal, which would prevent Dallagnol from running for office. The Lei da Ficha Limpa, however, says that ineligibility only applies when a prosecutor leaves office to escape a disciplinary administrative process, a PAD, that is, a later phase, when the CNMP collegiate has already analyzed the accusation and understood that there would be indications of disciplinary misconduct that could result in dismissal.

In order to run for federal deputy, Dallagnol left the Federal Public Ministry (MPF) in November 2021, long before the deadline for this, which ended in April 2022. At the time, there were no PADs open against him, which was attested in an official certificate from the CNMP itself. For this reason, Paraná’s Regional Electoral Court (TRE) validated his candidacy, and the Electoral Attorney General’s Office (PGE) also asked for the rejection of the request headed by the PT to revoke his mandate and make him ineligible. All this was ignored by the TSE, unanimously, however, without discussion between the 7 ministers – none debated with the rapporteur.

Ineligibility rules should be interpreted restrictively

Doctor and Master in Philosophy and General Theory of Law from USP, lawyer and professor Horacio Neiva pointed out, on Twitter, several problems with the decision. “The rules involving ineligibility must be interpreted restrictively. And this is what the Electoral Court has done over several years of consolidated jurisprudence”, he posted.

In 2019, this understanding was reaffirmed by the TSE plenary, by reversing the ineligibility of a mayor whose candidacy record was contested by political opponents. “It is the undisputed understanding of this Superior Court that the right to stand for election is a fundamental right. As a result, on the one hand, the interpreter should, whenever possible, privilege the interpretative line that expands the enjoyment of such a right. On the other hand, ineligibility must be interpreted restrictively, so that they do not reach situations not expressly provided for by the rule”, says the decision, reported by Minister Luís Roberto Barroso.

The Ficha Limpa rule – which requires opening a PAD – must be interpreted restrictively, that is, literally, because eligibility is a fundamental political right. The logic is that only the initiation of a disciplinary administrative process “involves a judgment for the administration of the seriousness of facts”, explained Horacio Neiva. According to him, it is also not up to the Electoral Court to “advance to examine the content of the preliminary processes and make a judgment on whether or not they would result in a possible, hypothetical and unknown punishment”.

The lawyer and professor also points to the risk that, in order to remove a judge or magistrate who wants to run from the electoral dispute, it would be enough for his opponents to present several requests for investigation against him for disciplinary misconduct, such as those against Dallagnol.

Attorney General Nathália Mariel wrote, also on Twitter, that despite having “zero sympathy” for her former colleague, she likes “very much legal certainty and reasoning, especially in the electoral area, regardless of those involved”.

“The position of the TSE has always been for the restrictive interpretation of ineligibility due to the importance of full political rights. Then today there was a 180 degree turn. Casuistry or not? All I know is that teaching electoral law in Brazil is always a mission.”

Republic Attorney Bruno Calabrich told the report that he was concerned about the “weak” reasoning of the TSE to revoke Dallagnol. “When decisions of this gravity are taken based on unconvincing legal reasons, the consequence is the weakening of the very authority that makes the decision. It is bad for the whole system and for society.”

Lawyer David Sobreira, host of the podcast Onze Supremos, considered that there was an “ad hoc change” in the case law of the TSE, that is, an unusual change, made with a pre-established purpose. “Investigations do not always become PAD and, even if they did, the LFL [Lei da Ficha Limpa] uses the pending PAD as a timeframe.”

Specialist in electoral law and member of the Brazilian Academy of Electoral and Political Law (Abradep), lawyer Isabel Mota says that, at the time of the approval of the Clean Record Law, she opposed the expansion of the causes of ineligibility, such as that applied to Dallagnol, which removes those who left office during PADs. “It was a concern of mine to overextend a circumstance that was meant to be exceptional,” she says.

She, however, understands that the decision against Dallagnol came from the assumption that he wanted to escape future conviction. “There was already a lot of talk in the legal world that his next sanction would go far beyond the warning and could lead to his dismissal. The exoneration was a card he had to escape a more serious disciplinary punishment, ”she recalls.

Dallagnol can appeal to the STF, if Moraes lets

It is still possible for Deltan Dallagnol’s defense to appeal to the TSE itself, through an appeal called “embargoes de declaração”, which aims to clarify obscurity, omission or contradiction in the decision. A reversal, however, is considered unlikely. Another possibility is to appeal to the Federal Supreme Court (STF), through an extraordinary appeal.

In this case, the defense must raise constitutional issues not analyzed by the TSE, and it will be up to the President of the Electoral Court, Alexandre de Moraes, to previously analyze the appeal and authorize its referral to the STF. It is also a possibility considered remote in the Court.