Analysis-Brazil's Bolsonaro faces legal risks after losing immunity

[January 04, 2023]  By Ricardo Brito and Gabriel Araujo

BRASILIA (Reuters) - Former Brazilian President Jair Bolsonaro's loss of broad protections from prosecution when he stepped down on Sunday leaves him more exposed to criminal and electoral probes that could lead to his arrest or prevent him from running for office.

Bolsonaro, a far-right nationalist, left Brazil for Florida on Friday after losing to leftist President Luiz Inacio Lula da Silva in Brazil's most fraught vote in a generation.

It remains unclear how long he plans to stay in Florida, which is home to his political idol, former U.S. President Donald Trump. Bolsonaro's U.S. trip insulates him from any immediate legal jeopardy in Brazil, where he is under investigation in at least four criminal probes.

Beyond that, his future may hinge on the path charted by crusading Supreme Court Justice Alexandre de Moraes, as well as on the political calculations of Lula, who was himself jailed by the Supreme Court in 2018.

Under Brazil's constitution, a sitting president can only be arrested if he is convicted by the Supreme Court. Once he leaves office, though, he can be tried by swifter moving lower courts.
 

After taking office on Sunday, Lula delivered a veiled threat to Bolsonaro, whose baseless claims of fraud at last year's presidential vote birthed a violent movement of election deniers.

"We do not carry any spirit of revenge against those who tried to subjugate the nation to their personal and ideological designs, but we will guarantee the rule of law," he said, without mentioning Bolsonaro by name. "Those who erred will answer for their errors."

Although Brazil's judiciary is independent, in practice presidents can influence criminal probes.

Bolsonaro has said he always obeyed the constitution. Frederick Wassef, the Bolsonaro family lawyer, did not respond to a message on LinkedIn.

The federal police, which has investigated Bolsonaro and his allies, is subordinate to Lula's justice ministry. The relatively independent force is now led by Andrei Rodrigues, a Lula ally who ran the leftist's security during a campaign marked by Bolsonarista violence.

From September, Lula will be able to install his own prosecutor general, who has the power to charge Bolsonaro if his cases remain with the Supreme Court. Critics accuse Augusto Aras, the current prosecutor general, of protecting Bolsonaro by refusing to bring charges against him.

SUPREME COURT PROBES

The four criminal probes already underway before Bolsonaro's election loss include allegations he leaned on the federal police to protect his sons, spread known electoral falsehoods, and harbored a troll farm peddling disinformation from within his presidential office.

All four are led by Moraes, who has been derided by Bolsonaro's supporters as an unelected despot censoring free speech. A separate Moraes-led investigation into violent protests by election deniers has already yielded several arrests.

The former president could find himself embroiled in Moraes' investigations into post-election protests, which included a foiled bomb plot by a man who said he was inspired by Bolsonaro. Tatiana Stoco, a law professor at Sao Paulo's Insper, said that outcome would be risky for Bolsonaro.

Brazil's President Jair Bolsonaro gestures, as he meets supporters at the Alvorada Palace, in Brasilia, Brazil, December 12, 2022. REUTERS/Adriano Machado/File Photo

"Personally, I see a higher risk of a pre-trial arrest if any evidence emerges of him being directly involved with recent anti-democratic acts," she said. "That would likely happen if he is proven to be encouraging, promoting or financing such acts."

Bolsonaro has barely spoken publicly since his defeat. In a teary-eyed message before leaving Brazil on Friday, he said he had been quietly "working to find alternatives," without giving further details.

Bolsonaro's silence may not shield him from blame.

Without naming Bolsonaro, former Vice President Hamilton Mourao said on Saturday that his ex-boss' silence had helped "create an atmosphere of chaos and social disintegration."

EXTRADITION, INELIGIBILITY?

Moraes could sign an arrest warrant for Bolsonaro while he is in the United States, which legal experts said was unlikely but not impossible.

Brazilian law enforcement probably needs more time to collate evidence against Bolsonaro, constitutional lawyer Camilo Onoda Caldas said, adding things could speed up if Bolsonaro adopted an aggressive tone while in the United States.

"One of the central motivations for Bolsonaro to stay in power was to protect himself and his children," Caldas said. "Since he is no longer president and is much more vulnerable, he must adopt a much more defensive posture."

Even if Moraes were to issue an arrest warrant, experts said an eventual extradition back to Brazil could take years, with no guarantee that U.S. courts would share the Brazilian judiciary's view that Bolsonaro's alleged crimes are extraditable.

"Political crimes are usually pretty hard to pursue via extradition," said John Feeley, who was the U.S. ambassador to Panama from 2016-2018 when the Central American nation sought the extradition of its former President Ricardo Martinelli.
 

Instead, Feeley said, Moraes might prefer to wait for Bolsonaro to return to Brazil and go after him on arrival: "He can't stay in Florida forever."

Bolsonaro also faces 12 requests for investigation at the Superior Electoral Court (TSE) for baseless claims Brazil's electoral system is liable to fraud, as well as alleged abuses of power for granting economic benefits to win votes.

If the TSE upholds those accusations, Bolsonaro could be declared ineligible for elected office.

Experts said Lula will likely tread carefully for fear of turning Bolsonaro into a martyr. Appeasing his fans and co-opting his allies may be the best way to neutralize his threat.

(Reporting by Ricardo Brito and Gabriel Araujo; Editing and additional reporting by Gabriel Stargardter; Editing by Alistair Bell)

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