Opinion: A Primer on Brazilian Impeachment

Opinion, by Michael Royster

RIO DE JANEIRO, BRAZIL – The Curmudgeon is reverting to didactic mode, so if you’re looking for entertainment, you should check out the Nightlife Guide. This column will be an explanation of what is likely to happen during the (for Dilma) not-very-merry month of May.

In both the United States and Brazil, impeachment is similar to an indictment made by a grand jury. After an indictment has been brought there is a trial by jury to decide whether a defendant is guilty. In both countries, the “grand jury” is the lower house of Congress and the “jury” is the upper house, or Senate.

In Brazil, the Chamber of Deputies has voted, by more than a two-thirds majority, to impeach President Dilma, based on a report prepared by its committee.

It has sent that report to the Senate, but, unlike in the U.S., conducting a trial to determine guilt or innocence is not automatic. Brazil’s Supreme Court (STF) has decided that the Senate itself must decide whether to initiate the trial.

The Senate has taken the first step, by forming an impeachment committee. This committee will, probably by Friday May 6th, vote on whether to recommend a trial. That recommendation will then be submitted to the full Senate.

The latest forecast is that on Wednesday, May 11th, around fifty Senators will vote to confirm the Chamber of Deputies indictment and open a trial to judge whether or not President Dilma commited “crimes de responsabilidade” that justify her being removed from office. If a majority of Senators vote against a trial, the entire proceeding ends, and Dilma will remain President.

If, as forecast, the Senate vote approves a trial, Dilma must immediately step down from the Presidency for up to 180 days. In the U.S., this is not the case. Presidents Andrew Johnson and Bill Clinton were both impeached by the House of Representatives, but did not have to step down during the trial in the Senate. [Both were acquitted by the Senate.]

During the 180 days of Dilma’s involuntary leave (on half pay) Vice President Temer will be Brazil’s President, having all the powers that office confers. These include the powers to appoint Ministers and initiate legislation.

While this may seem surprising, it is less surprising than the constitutional determination that if the President leaves Brazilian territory, the Vice President becomes President during her absence.

In an impeachment trial, the Senate is the jury, and the judge is the Presiding Justice of Brazil’s Supreme Court, not the President of the Senate, so as to avoid any potential conflict of interest, as the President of the Senate is third in line to succeed the President.

At the trial, both sides will prepare and submit their arguments. After all is said and done, a two-thirds vote of the full Senate is required to convict. There are 81 Senators, three from each State, so 54 Senators must vote to convict. An absence or abstention thus has the same practical effect as a vote to acquit.

In the meantime, acting President Temer will be attempting to cobble together a coalition that can govern Brazil. That won’t be easy.

The Curmudgeon predicts that May will be full of dismay for Dilma Rousseff.