The clash between President Bolsonaro and the Supreme Court

Constitutional checks and balances always entail friction, but in Brazil the relationship between the administration and the Supreme Court has reached the verge of an institutional crisis. At the center of the tension are investigations, one of which before the Supreme Court, which allegedly implicate two of President’s sons. The facts have unfolded with speed and intensity:

(i) on April 24 Justice Minister Sergio Moro resigned as a reaction to alleged attempts by the President at interfering with the work of the Federal Police so as to protect his eldest son, Senator Flavio Bolsonaro, investigated for hiring numerous no-show employees during his tenure as city counselor in Rio de Janeiro, and pocketing large portions of their salaries; Moro is identified by the population with the fight against corruption in Brazil, which he led for a number of years as the key judge in the high-profile Carwash probe that resulted in the demise of the workers’ party PT;

(ii) in support of his allegations, Moro referred to a cabinet meeting held on April 22; the footage of this meeting, until then classified, was made public on May 22 following an order of Supreme Court Justice Celso de Mello; it showed foul language and enraged interventions on the part the President and his cabinet members, some of which directed against members of the Supreme Court;

(iii) opposition parties filed a motion requesting that the Supreme Court aprehend the President`s mobile telephone to secure evidence of interference with the Federal Police; General Augusto Heleno, a top presidential aide, then warned Justice Mello that complying with this request would be intolerable, and could cause unpredictable consequences for national stability, while the President declared he would not surrender his phone; the ensuing days saw a flood of attacks on the Supreme Court in social media;

(iv) on May 27, following an order issued by Alexandre Moraes, another Supreme Court Justice, the Federal Police raided the homes of some of the President’s supporters responsible for social media outlets and handed out subpoenas to members of Congress loyal to the President; this took place under an investigation of fake news which may implicate another of the President`s sons, Carlos;

(v) the next day the President declared that “absurd orders are not to be followed”, while his third son, House Representative Eduardo Bolsonaro, stated “it is not a matter of if, but when institutional disruption will occur”; (in late 2018 Eduardo Bolsonaro stated all it would take “to shut down the Supreme Court was a corporal and a sergeant”);

(vi) Justice Minister André Mendonça, who replaced Sergio Moro, filed an habeas corpus petition in favor of the federal government’s Education Minister in connection with a comment made during the April 22 cabinet meeting, in which he suggested that the Supreme Court Justice bums should be sent to jail.

Importantly, the legality of the Supreme Court investigation on fake news which is at the center of the controversy is itself being disputed, and critics claim that the Court is politically motivated and lacks impartiality. The investigation was opened by Chief Justice Toffoli in March 2019 to look into attacks on members of the Court, and fake news, by two media outlets which discussed allegations of Toffoli`s involvement with the Carwash corruption scandal. The opening of the investigation was harshly criticized as ill-disguised censorship.

The reasons invoked to argue that the Court is acting beyond its powers are multifold. The investigation rests on a 50-year old provision of the Court`s internal rules that authorizes it to investigate crimes committed within the premises of the court; this provision was stretched to encompass crimes allegedly committed over the internet. The proceedings were not set to investigate persons who would ordinarily be tried before the Supreme Court, and the subject-matter of the investigation is vague, which has allowed it to be constantly broadened by Justice Alexandre de Moraes. The very role of Moraes is subject to dispute, as he was appointed by the Chief Justice to lead the investigation, which notoriously departs from standard, indeed universal, procedure whereby cases are assigned randomly to judges.

The then head of the Federal Prosecution Office (PGR), Raquel Dodge, filed a motion requesting that the investigation be immediately shelved, as it was not being conducted by the PGR, which under the Federal Constitution is the authority with competence to oversee investigations and file criminal charges. Also, it was pointed out that fundamental principles of Brazil`s Constitution prevent the authority responsible for a criminal investigation be the one judging the case. This motion was repealed by Justice Moraes.

Rede, a political party which opposes the President, then filed a lawsuit questioning the legality and constitutionality of the fake news investigation. The case was randomly assigned to Justice Edson Fachin, who pronounced the matter ready for trial more than a year ago. (It is for the Chief Justice to set a date, though).

Following the May 27 police raid of President supporters, and the uproar it caused, Chief Justice Toffoli finally scheduled discussion of the Rede lawsuit for June 10. If this is confirmed, the Court will have the opportunity to decide on the oddities surrounding the fake news investigation; and may choose to send it to those who are undoubtedly entitled to carry it out – which would be the Brazilian Federal Prosecution Office.

*Authors: LS Brasília Team