Cassação, Impeachment and Brazil’s Dilma Rousseff: A Guide
Correction appended below
Just when Brazil’s President Dilma Rousseff seemed to be clearing the threat of impeachment, another challenge to her presidency is gaining momentum.
The arrest of one of Rousseff’s top political advisers on allegations he received $7.5 million in illicit funds has fueled speculation that the government could be toppled by cassação, or the judicial revocation of Rousseff’s presidential mandate.
Unlike impeachment, a highly politicized process that must go through both houses of Congress and would only target Rousseff, the decision to rule on cassação is up to the Tribunal Superior Eleitoral (TSE), Brazil’s electoral court. If invoked, it would oust both Rousseff and Vice President Michel Temer, leaving House Speaker Eduardo Cunha as interim president until a new popular election could be held.
The TSE since October has been investigating whether Rousseff’s 2014 reelection campaign was funded with illicit money, which would be grounds for cassação. But the February 23 arrest of João Santana, a political adviser who orchestrated Rousseff’s successful presidential campaigns in 2010 and 2014, raised the possibility for the first time that the TSE investigation could incorporate evidence collected under the wide-reaching Operação Lava Jato (“Operation Car Wash”) federal investigation into graft at Petrobras.
“If there is a connection between the election of Rousseff and Lava Jato, that would implode the government,” said Gabriel Petrus, a political consultant at Brasilia-based Barral M Jorge & Associates who served as an adviser to Rousseff's previous chief of staff. At the very least, he added, Santana’s arrest will raise the political thermometer and revive talk of impeachment proceedings.
Nicknamed the “maker of presidents,” Santana orchestrated Rousseff’s back-to-back election victories, as well as the 2006 reelection of her predecessor and mentor, Luiz Inácio Lula da Silva. In recent years, he had become something of a globe-traveling campaign strategist, leading successful presidential bids for Danilo Medina in the Dominican Republic, José Eduardo dos Santos in Angola, Ollanta Humala in Peru, and both Hugo Chávez and Nicolás Maduro in Venezuela.
“Santana is to the resurgent Latin American left what James Carville was for Democrats in the United States during the 1990s – only with less lip and slightly lower fees,” Newsweek wrote in 2012.
Santana’s successes are now being judged in a different light. Between April 2012 and March 2013, he allegedly received in offshore bank accounts $3 million that Brazilian construction company Odebrecht had siphoned from state-run oil giant Petrobras, plus another $4.5 million from a businessman accused of paying bribes to Petrobras executives. Some 300 federal police this week raided his personal residences and commercial offices, along with Odebrecht’s offices.
While police said Santana’s arrest is not part of an investigation into illicit campaign finance, it does have the “potential to give more robustness to allegations that [Rousseff’s] campaign violated campaign finance law,” according to the Washington-based political risk consultancy Eurasia Group. If the money turns out to have been an illicit campaign donation to Rousseff and the PT, it would violate electoral transparency regulations, break rules against foreign financing of elections and, most alarmingly, suggest that she won election with funds skimmed from Petrobras contracts.
“We now attribute equal weight between a scenario where new elections are called this year (20 percent), and one in which Rousseff is impeached and Vice President Michel Temer finishes her term,” Eurasia analysts said in a February 22 research note, giving a 40 percent probability to Rousseff not finishing her term.
The TSE is composed of seven judges, with some seen as eager to investigate allegations filed by the opposition Brazilian Social Democracy Party (PSDB) that Rousseff’s campaign received illegal financing. The PSDB called for the TSE to enforce cassação and to hand the presidency to the second-place finisher in the 2014 election: Aécio Neves of PSDB.
TSE Judge Gilmar Mendes, who served as solicitor general under President Fernando Henrique Cardoso of the PSDB, is considered most likely to seek new evidence tying Rousseff’s campaign to the Lava Jato, according to the political analyst Petrus. Mendes has said there are indications the PT was indirectly financed by money stolen from Petrobras.
Mendes was joined by Judges João Otávio de Noronha, Luiz Fux, Henrique Neves, and TSE President José Antonio Dias Toffoli in opening the current hearings. Two judges, Maria Thereza de Assis Moura and Luciana Lóssio, opposed the hearings. Just as a simple majority of TSE judges could open the hearings, so can a simple majority enforce cassação.
Independent of the TSE’s activities, Congress in early December opened impeachment proceedings based on accusations Rousseff’s government broke fiscal responsibility laws. The proceedings, which stalled in mid-December, are expected to restart in late March after the Supreme Court makes a final ruling on how the House is to choose its 65-person impeachment committee.
Thiago de Aragão, director of strategy for Brasilia-based political consultancy Arko Advice, says that risk of impeachment is still higher than risk of cassação, which is a much slower-moving judicial process that could see repeated legal appeals. Rousseff has so far maintained a coalition to block impeachment, but more of her public and political support will take a hit from Santana’s arrest.
"This will impact the image of the party,” Aragão told AQ in a phone interview. “The PSDB is designing the strategy for how to attack, and attacking means talking to newspapers and provoking a public hearing. They can focus on impeachment or cassação to stir up public opinion.”
The hit to Rousseff’s image comes just as her approval ratings were recovering from record lows. A February 18-21 poll found her public approval had risen 8 points since October to 21.8 percent, while disapproval fell about 8 points to 62.4 percent. The percentage of Brazilians in favor of impeachment declined to 55.6 percent from 62.8 percent in July.
But those polls were taken before the arrest of Santana, whose sudden fall from preeminence highlights again how the wide-reaching Lava Jato investigation is challenging Brazil’s culture of impunity.
“We’re on the border of changing eras in Brazil,” said Aragão. “Until recently, anyone involved in the PT was immune. Now people are discovering that it’s not like this. The times are changing.”
Correction: A previous version of this story cited João Santana as a "former Workers Party treasurer." He has never held that post.
Kurczy is a special correspondent to AQ.
Any opinions expressed in this piece do not necessarily reflect those of Americas Quarterly or its publishers.