Trump rises, Bolsonaro falls and Americans can now envy Brazilians
When it comes to Constitutional Law, small loopholes generally cause major consequences.
Two pieces of news published in recent days have widened the abyss that separates Donald Trump from Jair Bolsonaro and the USA from Brazil. The first refers to the testimony given to the Brazilian Federal Police by Army General Freire Gomes. The second concerns the victory that the candidate for American president obtained in the US Supreme Court.
The implications of the two news seem evident to me, but they demonstrate that Brazil and the USA are heading in diametrically opposite directions.
General Freire Gomes' statement confirming the holding of meetings to discuss the coup d'état and its draft will define the fate of Jair Bolsonaro and the military commanders linked to him. The crimes attributed to the coup plotters (articles 359-l and 359-m, of the Brazilian Penal Code, namely: violent abolition of the Democratic State of Law and coup d'état) were consummated during the conspiracy and preparation of what occurred in Brasilia on January 8 2023. The fact that the coup failed is legally irrelevant.
Ineligible, Bolsonaro will not be able to reverse the decision made by the Superior Electoral Court in the Supreme Court in the case of summoning diplomats. Most likely, he will be quickly charged and convicted based on the general's testimony and the precedents already established on the issue by the Supreme Court.
Trump's situation is very different. To understand the decision of the US Supreme Court it is not necessary to make a great theoretical effort, just resorting to the History of Law.
"The king can do no wrong", Medieval Law. "The Führer is always right", the structuring legal principle of the Third Reich. "An American president should not be prosecuted for crimes he committed while in office", US Supreme Court.
A dispassionate observer quickly comes to the conclusion that by keeping Donald Trump in the electoral race the Supreme Court has demoralized US democracy. Section 4 of Article II of the American Constitution is quite precise:
“Section 4 The President, the Vice President, and all civil officers of the United States shall be removed from office upon indictment and conviction of treason, bribery, or other high offenses or crimes.”
Just as he could lose office if he is convicted of a serious crime while in office, the president of the United States should not go unprosecuted and eventually convicted of a serious crime after he has left the White House. The American constitutional text is incompatible with the medieval and Nazi principles of total irresponsibility of the head of state and government.
Furthermore, section 2 of article III of the American Constitution enshrines the principle of subjection of all citizens and authorities to the judgments of the judiciary:
“Section 2 The jurisdiction of the Judicial Power shall extend to all cases of Law and Equity occurring under the present Constitution, the laws of the United States, and the treaties concluded or to be concluded under its authority; to all cases affecting ambassadors, other ministers and consuls; to all matters of admiralty and maritime jurisdiction; to controversies to which the United States is a party; to controversies between two or more States, between a State and citizens of another State, between citizens of different States, between citizens of the same State claiming land due to concessions made by other States, in short, between a State, or its citizens, and powers, citizens, or foreign subjects.
In all matters relating to ambassadors, other ministers and consuls, and in those in which a State is involved, the Supreme Court shall exercise original jurisdiction. In the other cases mentioned above, the Supreme Court will have jurisdiction at the appellate level, ruling on both the facts and the law, observing the exceptions and rules that Congress establishes.
The trial of all crimes, except in cases of impeachment, will be carried out by jury, with the trial taking place in the same State in which the crimes occurred; and, if they have not occurred in any of the States, the trial shall take place in such place as Congress shall designate by law.”
It is not possible to say that a former US president is completely immune to trial for a crime committed during his term in office because this would lead to the inevitable revocation of the jurisdiction attributed to the Judiciary and the obligation to try all crimes by jury. As a former president, Trump cannot be impeached. But this does not necessarily exclude his trial for offenses and crimes he committed before his term of office, during his term of office or after it.
Trump cannot do wrong or is always right, the crime he committed cannot be judged before the election. By making an unprecedented decision to benefit the Republican candidate, the Supreme Court declared the end of democracy in the USA. Americans are already living under a feudal regime with a Nazi veneer.
By holding coup plotters criminally responsible, Brazil is moving in the opposite direction. Among us, democracy and the rule of law are being strengthened by the Supreme Court. It doesn't seem to me that the Brazilian Supreme Court can do something similar to what was done in the USA to benefit the former president.
In recent years, it has become common for Brazilian Supreme Court judges to cite decisions from the US Supreme Court. Before granting an unconstitutional privilege to Donald Trump, the judges of that Court could have observed what is happening in Brazil. But they preferred to ignore the Brazilian Supreme Court. The shortcut they took will certainly lead to an even greater weakening of the American political regime.
When it comes to Constitutional Law, small loopholes generally cause major consequences. If he is elected again, in addition to being completely immune for crimes committed in the past, Donald Trump will commit even greater crimes, certain that he is above any power, as if he were chosen by God. Just as the US Supreme Court tore up a little piece of the American Constitution to benefit Trump, the new King or Führer of the American Reich could tear up what remains of it with obvious harm to American citizens.
With Trump in power, pressure from the White House in favor of Jair Bolsonaro will become inevitable and eventually irresistible. Therefore, it is appropriate for the Brazilian Supreme Court to define the fate of the former president who tried to carry out a coup d'état before the American election. After that, it may become difficult to prosecute, judge and convict Bolsonaro for the crimes committed on January 8, 2023.