TSE made an expansive interpretation of the law to revoke Deltan – 05/17/2023 – Power

The TSE (Superior Electoral Court) adopted an expansive interpretation of the Clean Record Law to impeach deputy Deltan Dallagnol (Podemos-PR).

The legislation determines that members of the Public Prosecutor’s Office who request dismissal with pending PAD (disciplinary administrative proceedings) must be declared ineligible. The former coordinator of Lava Jato did not respond to procedures of this nature when he left the institution in 2021.

The seven ministers of the electoral court understood, however, that Deltan tried to defraud the law due to the fact that he left the Federal Public Ministry when he was responding to procedures that, later, could become PAD.

“That maneuver prevented the 15 administrative procedures being processed by the CNMP against him from leading to compulsory retirement or loss of office”, said the rapporteur, Minister Benedito Gonçalves, on Tuesday (16).

Former minister Marco Aurélio Mello, who served on the STF (Federal Supreme Court) for 31 years, told the Sheet who was “perplexed” with the understanding adopted by the TSE. “It was an interpretation outside the legal order”. And he went on: “I was perplexed because I found out today watching the news that there wasn’t even PAD”.

Former judge Márlon Reis, one of the creators of the Clean Record Law, came out in defense of the TSE’s decision.

On a social network, he said he had analyzed “the judgment in detail”. “In my legal reading, the decision was irrevocable. I do not take into account party-political aspects”, said Reis, who in 2018 assessed that the TSE should also reject Lula’s (PT) candidacy for the Planalto Palace.

The decision of the electoral court was unanimous among the seven members and had the support of three ministers appointed by former president Jair Bolsonaro (PL): Kassio Nunes Marques, Carlos Horbach and Sérgio Banhos. None of them presented a separate vote — they followed the position of the rapporteur.

This Wednesday (17), Deltan said that his impeachment represents “a day of celebration for the corrupt and a day of celebration for Lula”, during a speech alongside parliamentarians such as deputy Eduardo Bolsonaro (PL-SP).

The speed with which the analysis of the process took place in the TSE session surprised civil servants and former members of the court. Generally, in cases of great repercussion, it is common for there to be a debate about the situation in judgment or request for review (more time to analyze) of a minister. On Tuesday night, after reading the position of the rapporteur against Deltan, the voting of the other six ministers lasted about one minute.

Experts heard by Sheet criticize the Clean Record Law or the TSE’s decision, although most consider that the interpretation adopted by the court has already been made in other judgments, not just Deltan’s.

Lawyer Paula Bernardelli, from the Permanent Commission for Studies in Political and Electoral Law of the Institute of Lawyers of São Paulo, says that the logic of fraud to the law, used in the arguments of the TSE, is the core of the decision and is not new in the Electoral Justice .

“It is not that preliminary proceedings were considered disciplinary administrative proceedings, [o argumento] was that he acted fraudulently to prevent it from happening.”

She cites as a similar precedent the case of “itinerant mayors” — municipal managers who, to circumvent the ban on a third consecutive term, change their electoral domicile and run for office in a neighboring city.

The same occurs in cases in which the TSE contested votes for an entire coalition when it found the use of orange female candidates —the registration only to meet the quota of female candidates.

In these cases, the electoral courts already veto the maneuver because they understand that there is a circumvention of the spirit of the law, even though there is no express prohibition in the legislation.

A similar opinion is held by lawyer Ludgero Santos, from Abradep (Brazilian Academy of Electoral and Political Law). He claims to think that the law is excessive and says that one can even disagree with the expansion of his understanding by the theory of fraud to the law.

What can not be said, he says, is that this was done to harm Deltan, since it is part of consolidated jurisprudence.

In the opinion of lawyer and doctor of law Marcelo Peregrino, the TSE’s decision violates legal certainty. He disagrees with the argument made by the reporting minister that there would be a fraud to the law.

For Peregrino, who is a member of Abradep, the decision is extensive because it creates a hypothesis of ineligibility that the law does not provide for. “It is a clear attack on legal security because he is sanctioning an act that was lawful”, he says. “When Deltan asked for the dismissal, the preliminary process had no legal relevance, it was not an illegal act.”

He considers that agreeing with the decision would be to assume that the court could choose what would be the generating moment of ineligibility.

André Rosilho, professor of administrative law at FGV and a lawyer, also considers that the decision expands the law through a non-literal interpretation, a reading that he considers to be wrong.

“[O ministro] read a prohibition in the norm that is not expressed there”, he says. “The norm could have said that, but it didn’t. The ban was for a specific case. So through interpretation the court ended up extending the hypothesis of ineligibility.”

Volgane Carvalho, a member of Abradep’s academic coordination and an employee of the Electoral Justice in Maranhão, considers that the decision does not represent a point outside the curve, which deviates from the court’s traditional jurisprudence, arguing that the court already applies the issue of fraud to the law to other cases.

“He [ministro] interpreted that the request for dismissal that took place at that time was a way for him to [Deltan] close the processes preventing the common procedural march”, he says.

The cassation will only be reversed if Deltan appeals to the STF and obtains an order in its favor.

The only minimally optimistic scenario for the former prosecutor would be the distribution of the resource to a minister more sympathetic to Lava Jato. However, even if that were to happen, later an individual decision would have to be countersigned by the rest of the court.

In the assessment of members of the STF, it is unlikely that Deltan will get a majority in the plenary in his favor. First, because he is already starting the debate with three opposing votes, since the TSE decision was unanimous and the three STF members who make up the electoral court voted against him.

Second, because there is a current in the Supreme Court that has always been critical of the methods adopted by Deltan when he was a Lava Jato prosecutor and that tends to work to maintain the loss of mandate of the paranaense.

Thus, if the STF does not overturn the TSE’s decision in the coming days, it will only be up to the Chamber to comply with the court order and remove him from the House.

The current rule determines that it is not up to the Chamber to analyze the merits of the court’s determination. Despite this, in these situations the Legislature usually follows a formal and bureaucratic rite after being notified and opening a period, usually five days, for the deputy to manifest. Thus, there is no prediction of a vote in the plenary or some kind of vote on the TSE decision.

Deltan allies are even considering including an amnesty for the former attorney in the Amnesty PEC, a proposed amendment to the Constitution that promotes the greatest pardon in history for political parties. However, he will hardly have the strength for this.