Constitutional Divides in the wake of Rousseff's Impeachment

In the impeachment vote on August 31, the Brazilian Senate employed a murky interpretation of the constitution in order to spare President Dilma Rousseff from full punishment for her accused crimes, allowing her to maintain her right to run for office. In a last-minute disaggregation of the final vote, the Senate voted 61 to 20 to remove Rousseff from office, but was 12 votes shy of stripping her of the right to run for political office for eight years. President of the Supreme Federal Court Ricardo Lewandowski, who oversaw the impeachment trial, made the decision to split the vote. Many critics, including the Wilson Center’s Paulo Sotero, see the lenient decision as an attempt to water down a controversial decision that has fiercely divided the country and its political class for the past year.

Lewandowski’s decision quickly garnered criticism for its unconstitutionality, including from two other members of the Supreme Federal Court and former President Fernando Henrique Cardoso. These criticisms resulted in various official appeals against the vote; one was backed by several major political parties, including that of President Michel Temer.

However, Temer and other leaders are accused of being tied to alleged corruption in setting a precedent of leniency for politicians who are removed from office in the future. As the Lava Jato anti-corruption investigation continues to threaten much of Brazil’s political class, such a precedent could allow many politicians to continue seeking public office even after being removed, thus perpetuating the ingrained connection between money and politics in the country.

If the Supreme Federal Court does find reason to challenge the legitimacy of the votes, it would need to annul not only the decision regarding Rousseff’s political rights but also the impeachment vote itself, with the possibility that a second vote might turn out differently. While President Temer struggles to find legitimacy amid a transfer of power that some liken to a coup, the reinstatement of Rousseff and even the simple reopening of the trial would inject uncertainty into Brazil’s economy and its political system, both of which have only recently begun to stabilize and recover after the months-long power struggle.

The move to split the vote and its accompanying criticism also cast doubt on the political independence of the country’s highest court, which is generally regarded as the most well-functioning and corruption-free branch of Brazil’s government. Judge Lewandowski’s decision came just days before the end of his term as president of the court and has even led some to call for his impeachment.

Eduardo Cunha, the former Speaker of the House of Representatives, was formally removed

from his position on September 12. While some speculated that he might receive the same leniency as Rousseff, a near-unanimous vote by the House, 450 votes to 10, saw that he lost his political rights as well as his post. It remains to be seen, however, whether or not future removals from office that are not as universally agreed upon will see this new precedent continued.

For Brazilians who support the impeachment and for those who do not, the decision fails to provide a clean break. Whether Rousseff's maintained political rights are seen as one last favor for a law-breaking politician or as another attempt by her opposition to undermine Lava Jato and protect their own political futures, the uncertainty of such an important decision involving the highest institutions of Brazil's government ensures that Brazil's political struggles are by no means over.