Opinion: Why is There No “Fora Temer” in Brazil? Part 2

Opinion, by Michael Royster

RIO DE JANEIRO, BRAZIL – On Wednesday, August 2nd, the Chamber of Deputies will take a roll call vote of its members to determine whether the STF should be allowed to try President Temer while he is in office. While it’s important to note what is at stake in this vote, it’s even more important to identify what is NOT at stake.

What is definitely NOT at stake is Temer’s guilt or innocence. That requires a trial by the STF. If the Chamber decides, by 342 votes or more, to permit the trial to go ahead, the very same question is presented to the STF itself—should Temer be tried for the crimes of which he is charged?

In the case of the Chamber, the vote is political, not judicial. The immediate consequence of allowing the trial to go ahead is that Temer must step down for 180 days. During those 180 days, the President of the Chamber will become President of Brazil. There are hefty political consequences to changing horses in mid-stream, as Dilma’s impeachment has shown.

The Legislature is, under the Constitution, a “separate but equal” branch of government. Unlike the Judiciary, its members have been elected by the people to be their representatives. As such, legislators are arguably entitled to determine whether or not one of their members should take over as President.

If the Chamber does not approve proceeding with a trial, there are no immediate legal consequences. The charges are NOT dropped, and Temer does NOT go scot free. When Temer ceases to be President the case will be sent to the appropriate lower court (probably Judge Moro), because (as Lula knows) former Presidents are not entitled to trial by STF.

If the Chamber does approve letting the case proceed, the STF faces a judicial question: are the charges a sufficient legal basis for a trial? This is somewhat akin to the role of a grand jury in U.S. criminal law. The prosecutor brings charges and the grand jury decides whether there is sufficient evidence to justify a trial. The trial judge can accept or reject the grand jury findings.

Assuming the STF agrees that the evidence against Temer is sufficient to justify a trial, that trial must take place within the 180-day period when he is not President. If he’s acquitted, or even if no decision is reached, Temer returns to the Presidency. If convicted, he is entitled to appeal, but not to be President.

In August, 513 Deputies will have the opportunity to stand up and be counted. Currently, the betting is that Temer will be able to find at least 172 Deputies who would rather have him as President than Rodrigo Maia, and who are willing to say so in public.

Actually, they won’t say that at all. They’ll say Temer was framed, that it’s a plot by Lula and JBS, that there is no proof, only conjecture, that the Public Prosecutor is on a political witch hunt, etc.

Before the vote, Temer will use his presidential powers to convince the 172 to stand by him — jaw-boning, arm-twisting, log-rolling, pork-barreling, even skeleton-uncloseting and body-unburying.

Rodrigo Maia doesn’t stand a chance against all that firepower. We’re stuck with Temer till January 1, 2019.