Published On: June 27, 2017

What’s Next for President Temer?

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Brazil’s Attorney General, Rodrigo Janot, presented criminal charges against President Temer on Monday, June 26. Temer was accused of taking a half-million reais bribe (U$152,000) via an intermediary, an act that, according to Janot, “helped to compromise the image of the Federal Republic of Brazil.” Janot said Temer had agreed to the payment from Joesley Batista in exchange for helping to resolve a problem that a Batista company was having with a power plant it owned.

According to this charge, a further U$11 million in bribes was promised to Temer and Rodrigo Rocha Loures, a close aide to the president, who was later filmed taking delivery of a suitcase that Janot says contained the initial payment of R$500,000. Loures was then arrested.

The criminal charge of corruption against Temer will now be forwarded to the Chief Justice of the Supreme Court, Cármen Lúcia, marking the first time in Brazil’s history that a sitting president has faced criminal charges. It is up to the Supreme Court (Supremo Tribunal Federal) to decide if Janot’s charges hold merit.

If the Court rules the charges are valid, it will then request that the Chamber of Deputies (Lower House) authorize or reject the opening of criminal proceedings against Temer. The next step is for Lower House Speaker Rodrigo Maia to send the proceedings request to a commission that analyzes constitutional and judicial affairs.

Cármen Lúcia, Chief Justice of the Supreme Court

Cármen Lúcia, Chief Justice of the Supreme Court

The head of the commission, deputy Rodrigo Pacheco of Temer’s party, PMDB, will pick a rapporteur who will have up to seven sessions to complete a report. Temer’s lawyers will have up to 10 sessions to mount his defense. The commission will shape how the case is presented, but regardless of its recommendation, the charge will be voted on by the full Lower House.

For the criminal proceedings to move ahead, two thirds of the 512 members of the Lower House must vote against Temer. Should this occur, the case would then go back to the Supreme Court for a trial. However, even at this stage, the Supreme Court can vote to dismiss the charges.

If the two-thirds majority vote is not reached in the Lower House to send the charge to the Supreme Court, the charge would be placed on hold until the end of Temer’s term, which is December 31, 2018.

Should the Court accept the charges, Temer would be automatically suspended from office for the duration of his trial, which would be held in the Supreme Court. House Speaker Maia would take over in the interim while Temer is on trial because there is no sitting vice president.

Rodrigo Maia, Speaker of the House

Rodrigo Maia, Speaker of the House

If Temer is absolved by the Supreme Court, he would be allowed to return to office. The same would happen if the Court doesn’t reach a verdict in the maximum of 180 days allotted for the trial.

If Temer is found guilty by the Supreme Court, he could be jailed. The corruption allegation carries a sentence of between 2 and 12 years.

Should Temer be convicted, it is unclear who would lead the country. This perfect storm of political and criminal crises has no precedent in Brazil’s history and no stated solution within Brazil’s Constitution. Some scholars believe Maia would finish Temer’s term, while others think new elections would have to be set.

However, should Temer be absolved by the Supreme Court, his troubles may not be over. Close observers of the proceedings believe that Janot has enough information to charge Temer with more crimes. Besides the current charge of corruption against Temer, he is also being investigated for alleged obstruction of justice and being a member of a criminal organization. The obstruction of justice charges stem from alleged payments of “hush money” going to Eduardo Cunha, former Speaker of the House, who is currently in prison.

Eduardo Cunha

Eduardo Cunha, former Speaker of the House

Many observers believe that Janot, Brazil’s top prosecutor, may be making only one charge at this time in case Congress supports Temer and refuses to gather a two-thirds vote. Janot could then file a second charge to force lawmakers to vote more than once on Temer’s guilt. Allies of Temer have struggled with whether to continue supporting him or break away with an eye toward elections next year.

An additional wrinkle in the legal fabric lies in that Janot’s term as Attorney General (Procurador-geral da República) ends in September. As in the US, the Attorney General is a position appointed by the president. Clearly, there is no love lost between Janot and Temer these days, and Janot has no hope of being reappointed in September by Temer after these criminal charges. Not surprisingly, Janot has said he’s not seeking another term, which puts additional time constraints on further charges. There are several prosecutors who are rumored to be eager for Janot’s position, but it’s unclear whether they will further Janot’s work, and more important, who will appoint a new Attorney General if Temer is suspended or removed from office before September. It would not be surprising to see Temer make the new appointment as quickly as possible, long before September.

Rodrigo Janot, Procurador da Republica

Rodrigo Janot, Procurador-geral da República

Political analysts in Brazil believe Temer should have enough support in Congress to survive the two-thirds vote and avoid a trial in the Supreme Court. Congressional observers say today Temer can count on the support of about 200 to 250 of the 512 federal deputies in the Lower House. Temer needs only 172 deputies to either abstain from voting or vote against accepting the charge brought by Janot in order to remain in office.

As the Lava Jato investigations continue, more businessmen and ex-politicians are finding themselves in prison. This week, the former finance minister during the Lula presidency, Antonio Palocci, was sentenced to more than 12 years in prison for money laundering.

A poll released last weekend by Datafolha found that only 7 percent of Brazilians approved of Michel Temer’s administration, while 76 percent thought he should resign, and 47 percent felt ashamed to be Brazilian.

B. Michael Rubin is an American living in Curitiba.

[Research for this article comes from The New York Times and the Associated Press]

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