The Superior Electoral Court (TSE) formed a majority to make former president Jair Bolsonaro (Liberal Party) ineligible for eight years, this Friday (30), with the votes of ministers Benedito Gonçalves, Floriano de Azevedo Marques, André Ramos Tavares and the vice-president of the TSE, minister Cármen Lúcia.
Until now, Raul Araújo was the only minister to vote in favor of the former president. The decisive vote for ineligibility was declared this Friday (30) by Carmen Lúcia. "Right away, with all the respects of the eminent minister Raul Araújo, I announce to your excellence and the ministers that I am accompanying the reporting minister for the partial origin, with the application of the sanction of ineligibility to the first investigated, Jair Messias Bolsonaro, and declaring unfounded the request in relation to the second investigated, Walter Souza Braga Netto", said the minister.
"There were scathing complaints against the Judicial Branch, the disqualification of the Judicial Branch. A deliberate attack with exposure of facts that had already been refuted. The attacks on the Judicial Branch took place with the appointment of some ministers, such as Luís Roberto Barroso, Edson Fachin and also on your Excellency [Alexandre de Moraes] in an extremely serious and forceful way."
Cármen Lúcia also said that "criticism is part of it, what cannot happen is a public servant, and a public event, within a public space, with disclosure by the EBC (Empresa Brasileira de Comunicação) and the official social networks to make attacks against ministers of the Supreme Court as if it were not affecting the institution itself, and there is no democracy without an independent Judicial Branch".
Minister Cármen Lúcia / Alejandro Zambrana/Secom/TSE
Bolsonaro was accused of abuse of political power and misuse of the media by the Democratic Labor Party (PDT) for using the public apparatus to favor himself in last year's electoral process. What motivated the action was Bolsonaro's meeting with ambassadors from foreign countries at Palácio da Alvorada, on July 18, 2022, as well as its wide dissemination, by TV Brasil and its social networks.
Ministers Kassio Nunes Marques and the president of the TSE, Alexandre de Moraes, are still voting. The expectation among Bolsonaro supporters is that Nunes Marques will make a request for a review, that is, ask for more time to analyze the case.
Marques, however, has already stated that an inclination to request a review is “pure speculation”, in an interview with UOL. "I have never discussed this matter with anyone. Pure speculation," he declared. Finally, Alexandre de Moraes, president of the Superior Electoral Court, votes. His vote may be the fifth in favor of ineligibility.
Votes in favor of ineligibility
Rapporteur Benedito Gonçalves stated in his vote, expressed on Tuesday (27), that the Superior Electoral Court "will remain firm in its duty, as the highest body of electoral governance, to transmit truthful information and act to contain the dangerous spread of disinformation aimed at discrediting the democratic regime itself”.
"On merit, I partially uphold the request, to condemn the first investigated, Jair Messias Bolsonaro, for the practice of abuse of political power and misuse of media in the 2022 Elections and, due to his direct and personal responsibility for the unlawful act committed for the benefit of his candidacy for re-election to the position of President of the Republic, declare his ineligibility for 8 (eight) years following the 2022 election", said the rapporteur.
Floriano de Azevedo Marques, the second to vote for Bolsonaro's ineligibility, this Thursday (29), said that the coup draft, the weekly live broadcasts, the testimonials about the context of the broadcasts and the press interviews are "marginal for the analysis of the facts". The minister stated that "the serious challenges" to the electoral process that took place before and after the election, "although execrable", are not necessary to configure abuse of power and misuse of purpose in the meeting with the ambassadors.
Azevedo highlighted that Bolsonaro's speeches about the electoral process during the meeting, his presentation as a candidate for re-election and his expectations regarding the electoral result, with mobilization of public resources, are already enough to characterize abuse of power.
The minister pointed out that Bolsonaro had a clear objective of "gaining electoral advantage to the detriment of his competitors". Azevedo also argued that the use of a public building for a different purpose for which it was intended – in this case, the Alvorada Palace – would be enough to characterize administrative impropriety, one of the predictions for ineligibility.
Floriano de Azevedo Marques / Alejandro Zambrana/Secom/TSE
After Azevedo, on the same day, André Ramos Tavares was the third minister in favor of granting the ineligibility. The magistrate defended that the right to freedom of expression does not allow the propagation of lies. He also said that there was "unequivocal untruthfulness" with "harmful effects on democracy and on the electoral process". "The aforementioned content is permeated by false statements and unequivocal attacks on opposing parties and ministers of the Federal Supreme Court and the Superior Electoral Court."
Tavares also defended that it is "unfeasible" for the Superior Electoral Court to ignore the notorious facts circumscribed to the meeting with the ambassadors, which aimed to cause "severe disturbances" against democracy and the electoral process. "The candidacy benefited from a tactic that permeated the entire content of the speech given in the scope of the ceremony analyzed here, in order to stir up the electoral bases, in the sense of channeling votes to prevent any other candidate, more especially one of them, from winning in the 2022 elections, manipulating the polarization of society for the electoral benefit of the investigated person", said Tavares.
"Regarding the electoral character, it is important to note that the classification of a certain typical act of the campaign does not necessarily require a request for a vote or exposure of projects. The electoral character of the event is verified based on the use of typical campaign tactics, more than that, a very specific tactic used by the investigated person."
Votes against the loss of political right
Magistrate Raul Araújo voted against the ineligibility request, based on the defense of freedom of expression. "Any citizen can wish for a voting model different from the one in force in the country. All of this falls within the constitutional spectrum of freedom of expression," said Araújo. “It is not all [Bolsonaro's] speech that conveys untrue information, with positions in which the investigated only expressed his opinions, such as on the printed vote. (...) Democracy will not flourish where freedom of expression is cut. "
He also stated that it is necessary to measure "with prudence the need for intervention by the Electoral Court in the electoral process". "Did the conduct analyzed affect the electoral process with such severity that it requires intervention by the Judicial Branch to ensure the prevalence of suffrage?", questioned Araújo. The magistrate also criticized the inclusion of the “draft of the coup” in the process, a document that would authorize Bolsonaro to declare a State of Defense in the headquarters of the Superior Electoral Court to reverse the result of last year’s presidential election. Araújo classified the draft as a "strange find" and said that "there is no informative element capable of sustaining, beyond conclusions, the existence of relations between the meeting and the draft of the decree".
Relatório de Benedito Gonçalves
In the report, Minister Benedito Gonçalves defended that the statements made by Bolsonaro during the meeting were “harmful”. On the occasion, Bolsonaro “attacked the electoral justice and the electronic voting system”, which converged “with his campaign strategy” for re-election.
The meeting “should be analyzed as an element of the 2022 electoral campaign, endowed with sufficient gravity to affect the normality and legitimacy of the elections and, thus, configure abuse of political power and misuse of the means of communication”, said Gonçalves during the reading of his report. According to the document, Bolsonaro questioned the integrity of the Brazilian electoral system at least 23 times in 2021 alone.
“The use of the functional status of President of the Republic to manifest a misuse of purpose by bringing together ambassadors from foreign countries and spreading fake news against the electoral process shapes the abuse of political power. The state apparatus was also used in favor of the candidacy, as the meeting was held at the Alvorada Palace and broadcast by TV Brasil linked to the public company”, said Gonçalves.
Minister Benedito Gonçalves / Evaristo Sa/AFP
Walter Braga Netto, candidate for Vice-Presidency on the ticket with Bolsonaro, was also the target of the lawsuit. The military, however, did not become ineligible, since most magistrates followed the opinion of the Electoral Attorney General against punishing Braga Netto. The deputy electoral attorney general, Paulo Gonet, argued that there is no evidentiary framework of the participation of the candidate for vice president in the described behaviors.
“The Electoral Attorney General offered an opinion in which he opines for the partial validity of the action, so that only Jair Messias Bolsonaro is declared ineligible due to abuse of political power and misuse of the media, and for the acquittal of the candidate for Vice-President who has no involvement in the case”, states the report on Gonet's position.
Prosecution's arguments
Walber de Moura Agra, the lawyer for the Democratic Labor Party, said that Bolsonaro promoted “accusations without any evidence for almost 50 minutes, with unreasonable allegations, trying to turn our nation into an international pariah”, in front of 40 ambassadors. “The Democratic Labor Party begs that all requests be accepted so that posterity can proudly affirm, at the top of its lungs, that in Brasilia there is still judgment.”
The lawyer argued that the meeting was just one of the tools in Bolsonaro's strategic set in order to delegitimize the election. Add to this, for example, the draft of a coup decree found in the house of Anderson Torres.
Walber de Moura Agra / Alejandro Zambrana/Secom/TSE
The draft was included in the case at the request of the Democratic Labor Party. The party argued that the draft would be an "embryo conceived with the intention of a coup d'état", which contributes with "arguments that show the occurrence of abuse of political power tending to discredit this Electoral Justice and the electoral process, with the intention to alter the outcome of the election".
By including the document, Benedito Gonçalves stated that the thesis presented by the party has "adherence", "especially with regard to the correlation of the speech with the election and the quantitative aspect of gravity". The speech, continued the minister, "did not only target the ambassadors, as it would be inserted in the campaign strategy of the first investigated to 'mobilize his bases' through knowingly false facts about the voting system".
The defense stated in the case file that the draft could not be included in the process as evidence because it does not “truly constitute a 'document', since it is not signed, does not identify who produced it, does not present a recipient, as well as does not identify the effective intention and reality/materiality of its content”.
Bolsonaro's Defense Arguments
In turn, Tarcísio Vieira de Carvalho Neto, defense attorney, argued that the imposition of fines would be more understandable than conviction with a penalty of ineligibility. “A meeting with ambassadors is a meeting with ambassadors. Is there life in a public building? There is life in public buildings. In what month? In July of the election year, elections in October. This does not translate into a factual basis susceptible to verification or electoral judicial investigation action”, argued Neto before the ministers, denying the electoral use of the meeting.
Tarcísio Vieira de Carvalho Neto / Marcelo Camargo/Agência Brasil
"If the president jumped the gun in terms of propaganda, let the fine be applied. If the president misused a public building, let the fine under Article 73 of the Elections Law be applied. But the Democratic Labor Party, in a kind of electoral heat, like those skirmishes that precede the real fights, wanted for Aije [Electoral Judicial Investigation Action]", said Neto.
The lawyer also stated that the Democratic Labor Party made "improper use of the Electoral Justice as a way to catapult a tottering candidacy that never took off", referring to Ciro Gomes' campaign for the Presidency, which in the end obtained only 3.04% of the votes. "A flagrant misuse of purpose. An imposter's action."
Meeting with Ambassadors
In his speech to the ambassadors, Bolsonaro reiterated accusations already rejected by the Superior Electoral Court. It stemmed from an investigation opened by the Federal Police in 2018 about an attempt by a hacker to invade the court system. The Court has already clarified that this access was blocked and had no interference in the outcome of the elections. Among the lies told by the then president during the meeting, Bolsonaro told the ambassadors that the electoral system is not auditable.
Jair Bolsonaro at the meeting with ambassadors/ Clauber Cleber Caetano/PR
“We cannot face another election, under the cover of mistrust. We have to be sure that a voter's vote goes to that person," Bolsonaro said at the time. “When we talk about elections, transparency comes to mind. And Mr. Barroso [Luís Roberto Barroso, magistrate of the Federal Supreme Court], as well as Mr. Edson Fachin [then President of the Superior Electoral Court], began to go around the world criticizing me, as if I were preparing a coup. It is exactly the opposite of what is happening,” Bolsonaro accused.
The former president also directly attacked the ministers of the Federal Supreme Court. “They accuse me of attacking elections and democracy. It is the Superior Electoral Court itself that does this... We see clearly, Minister Fachin was the one who made Lula eligible, and now he is president of the Superior Electoral Court. Minister Barroso was a lawyer for the terrorist Battisti who was welcomed here by President Lula in December of 2010. Minister Alexandre de Moraes has advocated in the past for groups that, if I were a lawyer, I would never advocate ”, insinuated Bolsonaro.
Edited by: Rodrigo Durão Coelho
