Jair Bolsonaro, the former commanders and the coup

Image: Emil Zimmermann
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By MARCELO AITH*

Given the robustness of the evidence, only an amnesty will free Bolsonaro from prison

On March 15, the press and the general public had access to the testimonies of former Army and Air Force commanders from the Bolsonaro government period. The hearings, in brief summary, corroborate the testimony of the former aide-de-camp, Colonel Mauro Cid, and strengthen the thesis that Jair Bolsonaro was orchestrating the launch of a coup d'état. 

Obviously, the statements, analyzed separately, do not converge in a peremptory and automatic way to the configuration of the crimes foreseen in articles 359-L and 359-M, both of the Penal Code.

However, comparing them to the other elements of information collected during the investigations, including the draft “of the coup”, added to the numerous speeches by the former president throughout his government, as well as the statements made at the infamous ministerial meeting in June 2022 , an episode that only came to light with the arrest of Colonel Mauro Cid, leaves no doubt about his coup intent.

It also leaves no doubt that Bolsonaro's histrionic behavior, especially with the false claims of electoral fraud, and the mistaken association of the opposition's victory with the assumption of communism to power in Brazil, imposing panic on the population, especially on supporters linked to evangelical churches, contributed to the outbreak of demonstrations throughout the country, culminating in the demonstration of January 8, 2023 – the criminal invasion of the headquarters of the Three Powers in Brasília. 

However, in order to verify the responsibility or not of the former ruler in relation to the coup acts of January 8, 2023, as well as the adequacy of imputing him with the crimes of “Violent Abolition of the Democratic Rule of Law” and “Coup of State”, provided for, respectively, in articles 359-L and 359-M both of the Penal Code, we have to face the following questions:

Bolsonaro, by instigating the coup behavior of his supporters, whether actively or passively (by omission), adhered to the consequences of the acts carried out by them? Did the former president, when presenting the draft of the “coup” to the commanders of the armed forces, begin the execution phase of the iter criminis of the incriminating types provided for in articles 359-L and 359-M?

Article 359-L describes, in abstract, the following conduct as typical: “Trying, by using violence or serious threat, to abolish the Democratic Rule of Law, preventing or restricting the exercise of constitutional powers”. There is no doubt that the invaders of the three powers had the intention of abolishing the Democratic Rule of Law, by obstructing the exercise of powers. Furthermore, they only acted this way because of the constant instigation made by Bolsonaro and his team.

Article 359-M describes the conduct of “Trying to depose, through violence or serious threat, the legitimately constituted government”. The main objective of the invaders, instigated by Bolsonaro, was to depose the elected government, by creating an institutional disorder that would require the need to declare a state of siege or some similar instrument. 

There is no way to remove the former president from the epicenter of the outbreak of the coup movement on January 8, 2023, even if he did not expressly agree with such facts, it is explained.

In addition to the doctrinal criteria for defining criminally appropriate instigation, the brevity of which this article does not allow for further analytical incursions, it is necessary to analyze the former president's ability to instigate his followers to commit the crime. 

Bolsonaro's power of persuasion in relation to his supporters is unquestionable. In effect, his ability to causally influence the criminal actions of the invaders from the Three Powers is unequivocal. This fact can be proven by revisiting some moments from the four years of his government, such as the huge motorbikes during the pandemic period and other large demonstrations (September 7th), which are more than enough to demonstrate that he had a huge group of supporters in his hands. , eager to follow their master, prepared to do whatever he determined directly or indirectly. It cannot be forgotten that Bolsonaro's sepulchral silence after the elections served as a whistle for the dogs to attack, as happened in the attempted invasion of the Federal Police building in December 2022 and, mainly, on January 8, 2023. In this way , it is impossible not to recognize that Bolsonaro's behavior, during and after the elections, was decisive for the coup attempt. But, does this instigation have the power to generate criminal liability for Bolsonaro?

Well then. 

Bolsonaro made a real exhortation to the coup, whether in random speeches to his fans in the playpen, or in weekly “lives”, or even in silence after defeat at the polls, which instigated and was decisive in convincing people to commit crimes on the day January 8, 2023. He gave a true order of action to his followers, who faithfully carried out his command. Without Bolsonaro's behavior there would not have been the tragic outcome in Brasília, with the destruction of the three houses of the Powers of the Republic. In other words, if Bolsonaro was removed from the factual chain, the invasions of government buildings would not have occurred. Therefore, the ex-president's instigation was a conditio sine qua non for the criminal outcome.

Now looking at the “revealing” (in quotation marks because it revealed what we all knew) testimonies from the commanders of the Brazilian armed forces, in addition to showing that we were on the verge of an armed coup d'état, with the possible shedding of innocent blood, based on lies spread inconsequentially by the former president and his supporters, removes Bolsonaro from the status of participant, through instigation, of the crimes of January 8, 2023, placing him as the author of the crimes of “violent attempt to abolish the Democratic State of Law” and “coup d’état”. 

Both typical figures are attempted, even because if it required effective consummation we would already be facing a new state, albeit an authoritarian one. Furthermore, the executive phase of the criminal action has already begun with the preparation of the draft of the coup, as well as the distribution of tasks among the groups of supporters. It has already passed the preparatory phase. 

Therefore, as effective consummation is not required, the consent of the commanders of the Armed Forces would constitute mere argumentative reinforcement for the coup. With or without consent, the attempted coup would occur, as it did, and was foiled by the firm and correct conduct of the Federal District security forces and Minister Alexandre de Morais. Otherwise we would be facing a State of exception, even without the agreement of the Army and Air Force commanders. 

The defensive strategy of the former president's team of lawyers is commendable, but given the robustness of the evidence, only an amnesty will free Bolsonaro from prison.

*Marcelo Aith is a criminal lawyer with a master's degree in criminal law from PUC-SP.


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