Instigator, negligent: The legal paths to make Bolsonaro accountable for Brazil’s coup attempt

The long shadow of former Brazilian president Jair Bolsonaro, who is still in Florida on an extended stay, reaches all the way to the broken windows of Brasília. The far-right politician’s own future and that of Brazil will be defined by his degree of involvement in the coup attempt of January 8, when an angry mob stormed the headquarters of Congress, the Supreme Court and the presidential palace.

Prosecutors at the Federal Court of Audits, the country’s federal accountability office, on Tuesday requested a freeze on Bolsonaro’s assets to pay for the damage caused by his supporters during their assault on government buildings. If the precautionary measure is accepted, it would prevent Bolsonaro’s money from being moved abroad.

Authorities continue to screen the approximately 1,500 people who were held after the insurrection, imprisoning those who played an active role during the most violent moments. Simultaneously, the police and the courts are following two main lines of investigation: on one hand, to find out who encouraged, financed and organized the arrival in the capital of thousands of people from all corners of Brazil; and on the other, who stood by and did nothing despite mounting evidence about what was going to happen. Legal analyses and law specialists consulted by this newspaper indicate that Bolsonaro could be charged on both fronts.

The most likely punishment right now is a ban on running for public office. This is a possibility because, for the first time in many years, Bolsonaro is exposed to the justice system. When the far-right leader left the presidency on January 1, the day that Lula da Silva was inaugurated, it ended almost three decades of immunity, first as a member of the Chamber of Deputies and later as president. But this protection is over, and in the opinion of various legal experts, Bolsonaro will very likely end up being linked to the assault on Brasília in one way or another.

Thiago Bottini, a professor of criminal law at the Getúlio Vargas Foundation, notes that Brazilian law has a very broad concept of who can be considered the perpetrator of a crime, which could work against Bolsonaro. “Anyone who helps make the crime happen can be charged. They are all perpetrators,” he explained over the phone. The ex-president would not necessarily receive the same sentence as the individuals who physically climbed the ramp of Congress and broke through the police cordon, but he could still be accused of the same crime: violent abolition of the democratic rule of law, for example, which is punishable with four to eight years in prison.

His constant statements questioning the reliability of Brazil’s electronic voting system without any proof, his inflammatory speeches and his hundreds of posts on social media already constitute a voluminous body of evidence, said the jurist Jaqueline Valles. “Bolsonaro did not go to Brasília, he did not break anything, but he was a moral participant. The evidence is his own posts; just with that, it will be very easy to initiate criminal action. No matter how much he says that he had nothing to do with it and that he was out of the country, he is an accomplice, it is enough that he encouraged it.”

In addition to encouraging his followers into action, Bolsonaro could also be accused of failure to act, just like the governor of the Federal District, which includes Brasília, and the secretary of Public Security, who were both removed from their posts for failing to stop the extremists as they marched towards Three Powers Square. Although Bolsonaro is no longer the president, he was when his supporters were blocking roads in protest over Luiz Inácio Lula da Silva’s victory in the October runoff. He was also the president when followers who refused to accept the outcome of the election camped out for two months in front of military headquarters in Brasília, as well as in other parts of the country. His government turned a blind eye and could now be held accountable for it.

But it would be premature to imagine Bolsonaro behind bars. After his disastrous management of the Covid-19 pandemic, the Senate opened an investigation that accused him of 11 crimes, including genocide. The probe wore him down politically, but there were no criminal consequences. At that time, Bolsonaro was protected by the legal shield of the presidency and above all by the Prosecutor General, Augusto Aras, whom he personally selected. Meanwhile, dozens of impeachment requests were relegated to the desk drawer of the Speaker of the Chamber of Deputies. Now, Bolsonaro, an ordinary citizen, no longer has these valuable allies to fall back on.

Valls believes a likely scenario is that Bolsonaro will not go to jail, but will instead be barred from public office. It would be a middle-of-the-road response that would avoid inflaming half the country (Lula won with 51% of the votes compared to Bolsonaro’s 49%) while preventing him from getting away scot-free. If an appeals court were to convict him, no matter what the crime, he would not be able to run for election in a period of eight years.

“Even today he has once again incited people against the election result,” said Valls, alluding to a video post in which Bolsonaro once again questioned Lula’s victory. “Unfortunately, he is on the path of crime.”

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