By Fabio Kerche and Marjorie Marona*
Lula increased the autonomy of the Public Ministry and, particularly, of the one that could prosecute him, the PGR. But why?
While part of Brazilians follow the guidelines of social isolation as best they can in the face of the Covid-19 pandemic, the President of the Republic suffers from forced institutional isolation that erodes his political authority, perhaps irreversibly. Political leaders with seats in Congress, governors, ministers of the Federal Supreme Court and even part of the government are articulated in a task force to contain Bolsonaro's personalistic outbursts and erratic actions. In addition to his children – who, since the beginning of his government, have taken up space in the running of the country – and a bunch of ministers who, in normal situations, would not even have a seat on condominium supervisory boards, the president’s last man seems to be Augusto Aras, the attorney General of the Republic.
A few days ago, the PGR, urged by Minister Marco Aurélio Melo to provide information in the face of a crime report presented to the STF against the President of the Republic, recalled one of the many legacies left by former President Fernando Henrique Cardoso for political folklore Brazilian: Geraldo Brindeiro, the “shelter-general of the Republic”. That was the nickname used for the head of the Public Ministry of the Union, a body that includes the famous, and docile with the toucans, Federal Public Ministry.
During his two terms, the former president appointed Brindeiro to the Attorney General's Office four consecutive times. To have an idea of what this means, in FHC's 8 years, there were 10 Ministers of Justice. Toast, said the gossip, reciprocated the trust by refraining from continuing the accusations against the President of the Republic, and his first echelon – by shelving them, in a figurative sense; letting some corruption scandals that devastated the toucan government be forgotten.
Apart from any moral analysis of the period in which Brindeiro was in charge of the institution, which had gained autonomy shortly before with the 1988 Constitution, it is rational and predictable that the PGR seeks to please its main voter, the president. Although the presidential nomination does not require approval in the Senate, experience indicates that, if the chosen one reaches the sabbath, it rarely does not gather enough votes for approval. It is, therefore, the search for a mandate and reappointment to office that limits the independence of the PGR. This is an assumption that political science adopts, in general, to analyze the actions of politicians – assuming a rationality linked to their main objective, which is the election – and it also applies to those cases involving a fixed term position in which there are no limits on renewal.
Like politicians, the PGR needs to please its voters to be reappointed to office, that is, to the President of the Republic. And the constituents decided on this format precisely to protect the president: they ensured massive doses of autonomy for prosecutors, but did not comply with the Federal Public Ministry's demand for the creation of a triple list voted by the body's own members. As a result, what was created was a “protection barrier” for the entire top echelon of government in the face of virtual onslaughts of politicization of justice with recourse to accusations of corruption and other wrongdoings. It is also rational, therefore, for the president to nominate someone he trusts to fill the post.
But Lula did it differently, although he did not modify a line of legislation to do so. In an informal way, he gave up his right and duty to choose the PGR and began to indicate to the almost always resigned Senate the name with the most votes from a triple list formed by the prosecutors of the Federal Public Ministry (the labor, military and public prosecutors). Federal District do not vote, although they constitute the majority).
Under this new format, instead of pleasing the president, it is more rational to turn to the new voter: federal prosecutors, MP colleagues. From the campaign's point of view, the immediate reflection was the debate guided by corporate matters instead of discussing the institution's priorities in terms of setting an agenda.
The end of the institutional constraint for the PGR to prosecute the President of the Republic made the MPU's autonomy hypertrophy. What's more, incentives were created for the PGR to play more closely with federal prosecutors. These remained subordinated, but with the power of the vote, building majority base coalitions with the capacity to press for the conduction of certain corporate interests, but also strategic agendas. Lula increased the autonomy of the Public Ministry and, particularly, of the one that could prosecute him, the PGR. But why?
Countless times the former president has already expressed his surprise at the attitude of members of the Public Ministry, especially in the conduct of Operation Lava Jato. He has stated, on many other occasions, the appreciation he has for the institution – which seems to prove the profound change he led, when at the head of government, in the standard of combating corruption and organized crime. He perhaps disregarded the weight that the profile of MP members could have on their performance, particularly in an institutional scenario of almost unrestricted functional autonomy.
Prosecutors and attorneys constitute a highly elite segment of society – 60% of the fathers and 47% of the mothers of the interviewees have a university degree, while in the Brazilian population aged 50 or over, this proportion is 9% for men and 8,9 .70% for women. Furthermore, there is a clear gender and also racial bias: 77% of prosecutors and prosecutors are men and XNUMX% are white, according to research by the CeSeC (2016). The result was that the scorpion followed its nature and did not honor the trust of the tortoise that helped it cross the river.
Dilma Rousseff maintained the format adopted by Lula. In fact, the PT became its slave. Amidst the corruption scandals that plagued the government and the party, resuming the conduct of the PGR nomination process became synonymous with corruption, an undue attempt to prevent investigations from following their course. This is how Dilma reappointed Rodrigo Janot even in the midst of a political crisis that had the active and fundamental role of the Federal Public Ministry.
The point is: cases like the Mensalão and, especially, the Lava Jato Operation must be understood as a result of a series of institutional changes, among which the one regarding the process of nominating the PGR, because they favor a framework which dangerously combines high doses of autonomy with equally high levels of discretion on the part of political control bodies.
In the United States, for example, in situations where the president or one of his ministers is accused of a crime, a lawyer outside the Ministry of Justice is appointed, who acts as the MP at the federal level. this promoter had its autonomy limited after the scandal Monica Lewinsky precisely because the political class – democrats and republicans – realized that an actor with such a degree of autonomy and discretion potentially generated a lot of instability in the political system.
In Brazil, this perception was not democratically articulated, based on a broad party coalition. Michel Temer, a weak president at the head of a transitional government, still observed the triple list in the nomination of the PGR, but he did not completely bow to the will of the members of the Public Ministry: he nominated Rachel Dodge, who was the second most voted. Already as PGR, Dodge, when he realized that the vice who articulated the fall of Dilma was “card out of the deck” in the presidential succession that was approaching, he bet his chips on Bolsonaro.
The human sciences have few opportunities to observe the same actor so well (dependent variable) in two very different situations (independent variables): Dodge remained restrained in relation to the new president while encouraging hope of being reappointed by the captain. But when Bolsonaro unequivocally dismissed her, the most combative moments of her tenure followed [1].
Augusto Aras, the current Attorney General of the Republic, was nominated by Bolsonaro last year. Proving to be a good reader of the political scenario, he realized that campaigning among his colleagues in the Public Ministry would be a waste of time, since the president signaled that he would not respect the triple list. The situation bears some resemblance to what happened in the United States: after a long period in which the man or woman with the power to impeach the president enjoyed the broadest autonomy and discretion, a political control mechanism was once again established on the performance of the PGR.
Aras' posture during the coronavirus crisis is none other than what can be expected from a PGR that institutionally has incentives to please its major voter, the president. And, in this case, a government with authoritarian characteristics. On the other hand, from the base of the Federal Public Ministry some reaction to the irresponsible measures of the government in the face of the Covid-19 pandemic can be felt.
While prosecutors launch actions trying to stop the crazy flat-earthers of the Executive, who deny the seriousness of the pandemic, signaling that even for meritocratic-young-white-men the government has gone too far; the PGR steps on the brakes and flirts with the drawer. Act this way because you probably don't see the end of the Bolsonaro government right now. That is, his main voter remains the captain. Let's all keep an eye on Aras. He's the president's last man.
* Fabio Kerche Professor of the graduate programs in Political Science at UNIRIO and IESP/UERJ
*Marjorie Marona Professor of Political Science at UFMG. She coordinates the Justice Observatory in Brazil and Latin America (OJB-AL). Researcher at the INCT/IDDC – Institute for Democracy and Democratization of Communication.
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