Plan that would free Bolsonaro from the coup was stillborn, but forces new wear and tear on the STF

Unsurprisingly, the majority of the First Chamber of the Supreme Federal Court decided, this Friday 9, to reject the Chamber's maneuver to free deputy Alexandre Ramagem (PL-RJ) from criminal proceedings for the coup and, in addition, throw a lifeline to former president Jair Bolsonaro (PL).

Ministers Alexandre de Moraes, Cristiano Zanin, Flávio Dino and Luiz Fux voted in this sense. Minister Cármen Lúcia can speak until next Tuesday the 13th, but the outcome is sealed.

By approving, last Wednesday the 7th, a generic proposal that flirted with the cancellation of the entire investigation into the attempted coup, the deputies doubled down on an unfeasible strategy, since the STF had already made it clear that it would not tolerate trickery.

Understand, in summary, the chronology of the case:

• March 26: the STF indicts Ramagem, Bolsonaro and six other members of the “crucial nucleus” of the coup plot;
• April 1: the PL files in the Chamber the proposal to suspend the criminal action against Ramagem;
• April 24: Cristiano Zanin, president of the First Chamber of the STF, warns the Chamber that it could not even block the action against Ramagem in its entirety ;
• May 7: In a rush, the Constitution and Justice Committee and the plenary of the Chamber approve the PL proposal, in a clear challenge to the STF;
• May 8: The Chamber formally communicates to the STF the approval of the text. Zanin schedules an extraordinary session to evaluate it;
• May 9: The majority of the First Chamber rejects the Chamber's maneuver.

The Speaker of the House, Hugo Motta (Republicans-PB), did not view Zanin's sending of the letter at the end of April favorably. He and other deputies assessed that it was an undue interference in the Legislature, since the House had not yet analyzed the demand for the bill. Motta's reaction explains the lightning-fast approval, within a few hours of each other, in the CCJ and in the plenary.

The articulation of the PL was doomed to legal failure from the beginning because the Constitution, obviously, does not provide for the possibility of the National Congress completely paralyzing a criminal action in the STF that affects people other than parliamentarians.

What the Constitution authorizes is the suspension of actions against deputies or senators for crimes committed after their diploma. There is no authorization, therefore, to interrupt proceedings against other people or even against congressmen for crimes committed prior to their diploma.

Of the five crimes attributed to Ramagem by the Attorney General's Office, three were allegedly committed before he was sworn in: criminal organization, coup d'état and violent abolition of the Democratic State of Law. In other words, the deputies could suspend the criminal action only in relation to the two remaining crimes: qualified damage and deterioration of listed heritage, both related to the acts of January 8 , 2023.

Moraes voted as soon as the trial in the virtual plenary began. In a document with sentences in bold and repeated use of capital letters — as is customary in the minister's statements —, he concluded: “The requirements of the very personal nature (parliamentary immunity) and temporal nature (crimes committed after the diploma is issued), provided for in the constitutional text, are clear and express, in the sense of impossibility of applying this immunity to co-defendants non-parliamentarians and criminal offenses committed before graduation.”

Flávio Dino did not limit himself to following Moraes and published an incisive vote, with direct messages to the Chamber: “ Only in tyrannies a branch of the state can concentrate in its hands the power to pass laws, prepare the budget and execute it directly, carry out criminal trials or arbitrarily suspend them – all this supposedly without any kind of legal control”.

In practice, the Supreme Court partially overturned the proposal and only authorized the suspension of the action against Ramagem for the two crimes allegedly committed after the diploma was awarded. The process will also continue normally against all co-defendants.

Moraes had to speak out about the other defendants — including Bolsonaro — because the text from the Chamber was so broad that at no point did it limit Ramagem's benefit from the suspension of the proceedings. The teratological interpretation came from Congressman Alfredo Gaspar (AL), from the pro-Bolsonaro wing of União Brasil. “This House has no alternative but to suspend the criminal proceedings in their entirety,” read an excerpt from the opinion that the plenary, by a vote of 315 to 143 , approved.

By embracing a clearly unconstitutional proposal, the Chamber, with the approval of its president, caused yet another dose of wear and tear for the STF in the eyes of a portion of politics and society, since the ministers had to invalidate, once again, an act of the Legislature. This serves to boost the Bolsonaro version that the Court invades the prerogatives of deputies and senators and persecutes the extreme right.

The method is clear. On Friday afternoon, the leader of the PL in the Chamber of Deputies, Sóstenes Cavalcante (RJ), provoked the head of the House: “A minister is overriding the will of the entire Chamber. Now, President Hugo Motta has the floor. Are you going to defend the sovereignty of Parliament or watch in silence?”

Along the same lines, the opposition leader, Luciano Zucco (PL-RS), signaled an incentive for institutional disorder by declaring that Parliament “will not accept being reduced to a passive spectator of its own attributions”.

Once the Supreme Court has responded to the Chamber's ploy, the criminal investigation stage will begin, with witness statements and evidence production. Then, with no set date, the First Chamber will decide whether to convict or acquit each defendant. In addition to Moraes and Zanin, the panel includes Justices Flávio Dino, Cármen Lúcia and Luiz Fux.

In the event of conviction, the ministers will have to determine the sentencing — that is, how long the defendants will be imprisoned. The crimes attributed to Bolsonaro by the PGR, for example, total 43 years in prison , but in Brazil the maximum time for effective serving of the sentence is 40 years.