Why is Bolsonaro ineligible and Trump not? – 7/1/2023 – Power

Called the “Trump of the Tropics” in texts by the international press, Jair Bolsonaro (PL) equaled the American in one more characteristic when leaving office: he is the target of a series of investigations for acts practiced during the presidential term.

Differences in the two countries’ legislation and political systems, however, put them on different paths, at least for now.

While Bolsonaro was declared ineligible on Friday (30), Donald Trump may try to return to the White House even if he is arrested for crimes for which he has been indicted so far.

The judgment of the TSE (Superior Electoral Court) also highlighted particular characteristics of the Brazilian justice system, with many attributions concentrated in a specialized superior court, and which follows legislation that has hardened over the years.

It was the votes of 5 of the 7 TSE ministers that determined Bolsonaro to stay out of disputes for eight years. They understood that the then representative abused power by attacking the Brazilian electoral system with disinformation in a meeting at the Palácio da Alvorada with ambassadors broadcast by a state broadcaster.

Bolsonaro’s punishment was possible due to the Clean Record Law, enacted in 2010, which made it possible for ineligibility to also be applied to defeated candidates in the election, if the offense was considered serious.

The legislation even increased the sentence from 3 to 8 years without running for office.

In the United States, the situation is different both because of the Constitution and the autonomy of the states.

In some of them, convictions for serious crimes can strip the citizen of the right to vote for the rest of his life, which implies ineligibility for local offices.

In the case of the presidential election, however, it is different. Among the few criteria established by the US Constitution for someone to run for the highest office in the country, is not the absence of criminal convictions.

“A paradoxical situation is created there, and it is possible that the Supreme Court will rule on this”, says lawyer Olivia Raposo da Silva Telles, author of “Comparative Electoral Law – Brazil, United States and France” (Saraiva, 2009).

Another characteristic makes the situation even more peculiar. Trump is registered as a voter in Florida, which would prevent him from voting for himself if he was convicted. But it wouldn’t stop him from being voted.

For now, the former American president has been indicted in two cases. One, in federal court, for allegedly keeping confidential government documents after leaving the White House.

And another in New York, with accusations of fraud involving the purchase of the silence of a porn actress before the 2016 elections.

The situation is new. The case of the socialist Eugene Debs, who ran for president in 1920 despite being imprisoned, is always remembered. Trump, if he has the same fate, will however be the first politician with real chances of victory to face this situation.

The novelty makes the country’s press even speculate whether Trump, if convicted and elected, could give himself a presidential pardon.

A different situation may occur if the president is held responsible for the attack on the Capitol on January 6, 2021. This is because the 14th Amendment prohibits anyone who “has engaged in insurrection or rebellion” against the government from holding civilian or military office in federal or state government. .

Trump is the subject of an investigation into his participation in the attack on the Capitol. The House committee that investigated the break-in recommended formally indicting him for insurrection, but the Justice Department has not prosecuted any of those charged so far with the crime.

Another scenario that could have left Trump out of the presidential race would be if Congress had approved his impeachment. In that case, in addition to losing office, he could have been declared ineligible.

But he managed to escape two impeachment proceedings.

Professor of constitutional law at UFF (Fluminense Federal University), Cassio Casagrande points out that the difference between Brazil and the United States derives from different political and legal cultures.

He recalls that, even in the event of impeachment, who would take away Trump’s rights to be elected would be the Legislature.

“There is no possibility in the American Constitution that the Judiciary makes a candidate for president ineligible. The idea of ​​the American system is that who is elected can only be judged by who is elected”, he says.

Brazil, according to the database of International Idea (Institute for Democracy and Electoral Assistance), is just one of about 20 countries in the world where cases related to the presidential election are dealt with in the first instance in a superior electoral court.

Most of the other nations on the list are in Latin America, like Argentina and Colombia, or in the Balkans, like Bosnia and Serbia.

In other countries, this tends to happen in non-election courts, whether federal or state.

Professor at the political science department at UFMG (Federal University of Minas Gerais), Marjorie Marona recalls that, in Brazil, electoral governance is very concentrated on the judicial authority, which administers the election, decides and regulates actions.

It’s not necessarily a problem, he says. It is a design that confers a very great independence in relation to the Executive, which avoids undue interference. For her, each system has advantages and disadvantages.

“A decentralized model, for example, can be very useful for streamlining processes, but it is less efficient for preventing fraud”, he says.

“A less regulated model may give more freedom of action to the bodies in charge of electoral governance, but at the same time it leaves a very large opening for discretion. With that, credibility may be compromised.”

The differences between Brazil and other countries did not escape the considerations of TSE Minister Floriano de Azevedo Marques Neto in the vote in which he expressed agreement with the accusation that Bolsonaro committed abuse of power.

He pointed out that it was the elected Congress that established the laws that the Electoral Justice should apply.

“If other systems do not provide for sanctions of ineligibility even for criminally convicted persons, it is a matter of legislative choice. The Brazilian system does,” he said.