Lula's judgment in the STF

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By VALERIO ARCARY*

One of the biggest mistakes of the Brazilian left was to underestimate Bolsonaro. But he cannot stumble, for the second time, on the ball, and underestimate Lula's role

Until the announcement of Celso de Melo's retirement, it seemed that Lula's Habeas Corpus judgment in the second panel of the STF (Federal Supreme Court) should take place before the end of October. Now, nobody knows. One of the biggest mistakes of the Brazilian left was to underestimate Bolsonaro. But he cannot stumble, for the second time, on the ball, and underestimate Lula's role.

It will be the most important political trial of the year, if it ever takes place. There are many legal technicalities at stake, but broadly speaking, two possible outcomes. Either Lula loses the HC, and will not be able to be a candidate in 2022, or Lula regains his political rights and, if he wants, becomes a pre-candidate, and it is difficult to think that he would not make it to the second round.

In the current situation, a relative strengthening of Bolsonaro prevails, even if it is transitory, but it is also difficult to imagine that, if he manages to fulfill his mandate, he would not reach the second round. Therefore, this judgment refers to the issue of power, in its utmost gravity, because there are no vacancies for three candidates in the second round. Free Lula would probably mean that Moro, Doria, or Huck would be out of the second round.

The liberal doctrine of the “independence” of the three powers will be put to the test once more. Independence from the presidency and Congress, but not from the ruling class. There is no “central committee” of the bourgeoisie, of course. It turns out that political judgments are decisions that depend a lot on the relationship of forces of the conjuncture in which they happen. But a head-on clash between a STF decision and the “common sense” of the ruling class is also not impossible, because the function of Justice in the balance of the regime should be the preservation of class interests, in a long-term perspective, raising above the immediate interests of one or another faction.

From this angle, Lava-Jato has already gone too far with the abuse of award-winning delations without evidence: the judicialization of politics has reached extreme limits, even dangerously dysfunctional. But, on the other hand, if the power centers of Brazilian capital did not choose Bolsonaro, they adapted to him, because they coincide with the strategic project of repositioning Brazil in the world market, and they know that an extreme right-wing government, led by a neo-fascist, is instrumental in imposing a historic defeat on the workers. They fear Bolsonaro's Bonapartist excesses, but they fear much more the furious defensive reaction that could explode in the popular classes.

From a legal point of view, the trial essentially consists of an assessment of Sergio Moro's procedures and his relationship with the Curitiba prosecutors. The approval of Lula's HC corresponds to the annulment of the sentences, and the dismantling of a hegemonic political discourse in the last five years. Therefore, an earthquake.

Its outcome has always been unpredictable, because the consequences are immeasurable. After everything that has happened in Brazil since the institutional coup, it would be unforgivably naive to underestimate the pressure from the majority fraction of the ruling class to maintain Lula's condemnation.

It depends on Gilmar Mendes' initiative to put it on the agenda. Considering a probable anticipation of the votes in the second group, the judgment would be, at this moment, tied, which means that the sentence would be pro-defendant. Toffoli should replace Celso de Melo in the second group. Which could suggest an even better, less contestable result. But the maximum gravity of this outcome requires considering the possibility that the decision will be taken to the Plenary. Bolsonaro's nomination of Celso de Melo's replacement introduces even more uncertainty.

If Lula were not still a competitive candidate in the 2022 elections, the possibility of full recovery of his political rights would be much greater. Lula's ban is a majority position in the ruling class, even in circles that admit concern about the abuses of power in the Lava-Jato operation. It obeys, at this moment, a calculation that Lula's candidacy would make a second round against Bolsonaro a great possibility.

Even if any of the five ministers of the second group can, eventually, change their votes, the decision seems to be in Toffoli's hands, because it is already known that Lewandowsky and Gilmar Mendes, in principle, will vote in favor of HC, and Carmem Lúcia and Edson Fachin will vote against.

If Toffoli breaks the tie in favor of Lula's HC, it is not impossible that a final decision could be transferred, hypothetically, to the Plenary of the STF, with Luís Fux, a supporter of the LavaJato operation, in the presidency of the STF. In plenary there is some uncertainty, because five of the eleven ministers have already voted in the past, critically, in the face of Lava-Jato, although on less controversial topics: Alexandre de Moraes, Gilmar Mendes, Ricardo Lewandowski, Rosa Weber, and Dias Toffoli. Uncertain, doubtful, even unlikely, because Celso de Melo's replacement will be appointed by Bolsonaro. But not impossible.

The uncertainty stems from Bolsonaro's break with Sergio Moro. We witnessed, after the inauguration of Augusto Aras in the PGR (Attorney General of the Republic), an emptying of power in the core of Curitiba.

There will not be much room for a “jeitinho” for this judgment in the STF, although the legal imagination of STF judges should never be underestimated. Because if there is a bourgeois majority in favor of maintaining Lula's conviction, it is increasingly clear that there are different fractions, with different interests, in opposition to Lava Jato.

Sergio Moro's break with the government resulted in a lawsuit in the STF in which Bolsonaro is accused of trying to intervene in the Federal Police, therefore, abuse of power. Nor should we diminish the censure that Dallagnol received in the National Council of Justice. But the divergences of political projects put the judicialization of the political struggle on another level with Aras' initiative to concentrate all operations against corruption in the PGR in Brasília, emptying Curitiba.

The perception that “Lava-Jato has already done what it should have done” and went too far, or a combination of pressure from Bolsonarism and uneasiness in the center has been growing in Congress. PSDB, MDB and DEM have already been hit by Lava-Jato, and continue to be harassed because Serra and Alckmin are back in the headlines and will have difficulties to escape, along with Aécio, a conviction, at least for the formation of slush funds, if not illicit personal enrichment, what is more serious.

Bolsonarism itself took on a questioning of LavaJato prosecutors, on the initiative of the PGR under the command of Aras. Which signals that Bolsonaro prefers, at this moment, perhaps, a second round in 2022 against Lula, and not against Sergio Moro or Dória.

The ruling class is divided, but it seems unavoidable that, if Bolsonaro manages to survive until 2022, he should reach the second round. A majority of the bourgeoisie works, therefore, to prevent the left from reaching the second round.

In those fractions that bet on a candidacy of Sergio Moro or Dória, or another like Luciano Huck, the perspective prevails that the gravity of the social crisis, as soon as the emergency aid mattress is suspended, even if it is replaced by Renda Brasil, prevents the left, especially if Lula can be a candidate, from being excluded from a second round. Therefore, it would liquidate the possibility of a liberal candidacy against Bolsonaro. Because the place of Moro and Dória, in the face of polarization, would be similar to that of Alckmin. Therefore, Lula's interdiction is strategic.

From the left's point of view, Lula's defense also obeys a strategic calculation. If they did what they did to Lula, they can do anything to anyone.

*Valério Arcary is a retired professor at IFSP. Author, among other books, of Revolution meets history (Shaman)

 

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