BRAZIL CORRUPTION SCANDAL: A GUIDE TO IMPEACHMENT

C O N F I D E N T I A L SECTION 01 OF 03 BRASILIA 002387 SIPDIS TREASURY FOR PARODI; STATE PASS TO USTR AND USAID/LAC E.O. 12958: DECL: 09/09/2015 TAGS: PGOV PREL ECON BR SUBJECT: BRAZIL CORRUPTION SCANDAL: A GUIDE TO IMPEACHMENT MECHANICS REF: A. BRASILIA 2219 ¶B. BRASILIA 2150 ¶C. BRASILIA 2082 ¶D. BRASILIA 2025 ¶E. BRASILIA 1979 ¶F. BRASILIA 1874 ¶G. BRASILIA 1973 ¶H. BRASILIA 1631 ¶I. BRASILIA 2242 ¶J. BRASILIA 2237 ¶K. BRASILIA 2305 ¶L. BRASILIA 2348 Classified By: POLITICAL COUNSELOR DENNIS HEARNE. REASONS: 1.4(B)(D). ¶1. (SBU) INTRODUCTION: Per refs, over the past three months the political crisis in Brazil caused by interlocking corruption scandals has led to public discussion of the question of presidential impeachment. In a 4 September interview in &O Estado do Sao Paulo,8 Brazilian Supreme Court President Nelson Jobim opined that the lack of public support for impeaching President Lula da Silva mitigates against consideration of the action, in contrast to the robust public mobilization in favor of impeachment of former President Fernando Collor de Mello. There clearly remains a powerful desire in Brazilian society, including within the political opposition, to avoid this drastic measure against Lula, absent new revelations that would tie the president incontrovertibly to wrongdoing or gross negligence. Nonetheless, for Washington's background, we are providing herewith a guide to Brazil's presidential impeachment procedures under the 1988 constitution. THE IMPEACHMENT PROCESS -------------- ¶2. (U) The implementation of impeachment procedures in Brazil is a complex political process that involves both Houses of Congress -- the Chamber of Deputies and the Senate. Article 51 of the 1988 Brazilian Constitution states that any citizen may denounce the President for a "crime of responsibility" by submitting a formal impeachment request to the President of the Chamber of Deputies (equivalent to the U.S. Speaker of the House),a position held currently by the controversial Severino Cavalcanti. The Chamber President analyzes the request and, if he deems the request appropriate for action, sends it to a commission conceived specifically to investigate the allegations against the President. ¶3. (U) The Chamber President has the authority to decide whether to move the process to the commission, based on the merits of the request and subject to recommendations from legal advisors. Two private attorneys (with unclear motives and affiliations) filed impeachment requests against Lula with the Chamber in recent weeks, but Severino Cavalcanti effectively shelved those requests, and has suffered no criticism for that decision. Four other impeachment requests against Lula dating back to his election but preceding the current spate of scandals have also been shelved. Hence public and political pressures, in addition to legal issues, play a major role in the Chamber President's decision making. ¶4. (U) The commission's findings are then voted on by Chamber deputies and require a vote of a two-thirds majority to move the process to the Senate. When the impeachment motion arrives in the Senate, the accused President must resign from his duties for 180 days. The Senate is then constituted as a special tribunal for hearing the impeachment case, with the President of the Brazilian Supreme Court (Supremo Tribunal Federal) presiding over the trial and senators acting as jurors. If found guilty by two-thirds of the Senators, the President is removed from office and loses his political rights (e.g., ability to run for election and vote) for eight years. The succession chain is similar to that of the United States: the President is succeeded by the Vice-President, followed by the President of the Chamber of Deputies, the President of the Senate, and the President of the Supreme Court. THE CURRENT SCENARIO -------------- ¶5. SBU) Per refs, the political crisis rocking President Lula's Worker's Party (PT) and his government was prompted by allegations that the PT -- which has a minority in Congress and struggles to maintain a working majority there through a fragile coalition with other parties -- was securing support in Congress and consolidating its own power base through illegal financial activities. Per refs, elements of the PT stand accused of bribing lawmakers from other parties in order to secure their votes in Congress. Eighteen congressmen are subjects of formal expulsion proceedings in the Chamber. Elements of the PT also allegedly manipulated the system of appointments to state-run enterprises by handing out top jobs to allied parties' nominees (refs). In addition, the PT is accused of irregular campaign funding activities -- including off-shore transfers that evaded tax obligations -- for itself and allied parties (refs). Although the corruption and illicit financing charges relate primarily to the PT party rather than the government, the continuing revelations have led the Congress and judicial authorities to investigations that could eventually implicate high-level administration officials, including possibly President Lula da Silva himself. ¶6. (SBU) Legal pursuit of these allegations could follow two paths. First, if it becomes clear that illegal activities were underway -- the vote bribery scheme, illegal campaign funding, influence peddling -- and that President Lula, although aware at some level of these activities, failed to act to curb them, he could be accused of a "crime of responsibility" -- a first step towards the impeachment process within the congress. Second, if the President is implicated in more direct fashion in a corruption scheme -- e.g., conspiring in or profiting from it -- he could be impeached and also subjected to a criminal trial before the Brazilian Supreme Court. THE IMPEACHMENT OF COLLOR DE MELO -------------- ¶7. (U) In 1992, the first Brazilian President elected after the military dictatorship, Fernando Collor de Melo, faced an impeachment process due to corruption allegations. In May 1992, President Collor's younger brother, Pedro Collor, made public accusations of a corruption scheme operated by Collor's campaign treasurer, Paulo Cesar Farias, with Collor's blessing and participation. According to Pedro Collor, the Collor-Farias administration centralized all corruption, demanding 40 percent kickbacks for government contracts and special policy decisions, and committing other crimes ranging from money laundering to influence peddling. The widely publicized revelations brought Brazilians, especially young people, into the streets in the tens of thousands to demand impeachment. The public pressure and intense media scrutiny pushed the process ahead with alacrity. On 1 June 1992, the Chamber of Deputies installed an impeachment commission. On 29 September 1992, the Chamber voted to start the impeachment process by a 441-36 vote, and on 30 December, at the opening of his impeachment trial by the Brazilian Senate, Collor resigned as President of Brazil. Even though he resigned, the Senate convicted Collor of the corruption charges, barring him from holding public office for a period of eight years. Collor also faced criminal prosecution on the corruption charges, but in December 1994 he was acquitted by the Supreme Court on the grounds of insufficient evidence. ¶8. (C) Comment. The three necessary factors for impeachment of a sitting president in Brazil are: (1) sufficient evidence of either a &crime of responsibility8 (per above),or outright criminal complicity; (2) congressional competence and credibility to carry out the proceeding; and (3) a strong public outcry demanding impeachment. On the first point, it could be reasonably argued that the last three months of scandal have produced sufficient grounds for at least opening lines of investigation toward a possible impeachment. The president of Brazil's professional order of attorneys and other legal experts have said as much publicly, and Supreme Court President Jobim in his &Estado8 interview was tellingly silent on this issue. On the second point, despite the proceedings for expulsion against several congressmen, Brazil's congressional inquiry committees (CPIs) have done a sufficiently credible job thus far in the crisis to establish the institution's ability to carry out an impeachment trial. ¶9. (C) Comment continued. Hence it is the final element of public will, as Jobim and major figures across Brazilian society have argued consistently over the past three months, that remains decisive in keeping the threat of impeachment away from Lula. Although Lula's popularity has plummeted and his re-election prospects appear dismal at present, the majority of Brazilians of all political stripes, for various reasons ranging from admiration for Lula's personal history to fears of negative impacts on Brazil's economy, remain uninterested in the trauma of impeachment. We believe this will likely remain the case, absent a stunning revelation that more clearly and directly links Lula or those closest to him to impropriety. That would a touchstone event, and we think then the tide of public opinion might well turn, with Brazilians looking beyond the figure of Lula and temporary setbacks for the economy and toward the necessity of honoring constitutional processes and safeguarding the credibility of national institutions that have generally functioned well through this long crisis. CHICOLA