Brazil top court nears Bolsonaro conviction in coup trial

RIO DE JANEIRO (CN) — Brazil’s Supreme Court on Tuesday began reading votes in the trial that could convict former President Jair Bolsonaro and members of his civilian and military inner circle over attempting a coup d’état.

The trial began Sept. 2 with arguments from prosecutors and defense lawyers and has now moved into its decisive phase, with justices casting their votes.

Justice Alexandre de Moraes, the case’s rapporteur, opened with a more than five-hour opinion portraying Bolsonaro as the leader of a structured criminal organization dedicated to preventing Luiz Inácio Lula da Silva from taking office after the 2022 election.

Alongside Bolsonaro, seven of his top aides face charges. Federal prosecutors accuse all of them of armed criminal conspiracy, attempted coup, attempted violent abolition of the democratic state, qualified damage and destruction of protected property.

Rodrigo Sartoti, a constitutional law attorney, described de Moraes’ opinion as “clear and forceful,” saying it “laid out the evidence proving the coup attempt, set out a chronology of events culminating in Jan. 8, and made clear the legal basis of his vote.”

Sartoti added the ruling was “historic,” showing “how close Brazil came to a coup and to a regime of exception.”

De Moraes presented a timeline beginning in 2021 that he said showed not just preparatory steps but “executory acts” — a key distinction meant to undermine defense claims that Bolsonaro’s actions were limited to political rhetoric or abstract planning.

According to Sartoti, that distinction is crucial to defining the iter criminis — from intent to preparation, execution and consummation. Some of the crimes at issue are consummated upon execution, while others admit attempted form.

“Clarifying this path is essential to identify which crimes were committed, who took part in each stage, and how to assign proportionate sentences,” he said.

“The court is not debating whether there was a coup attempt, but who carried it out,” de Moraes said, recalling the Supreme Court has already recognized a coup attempt in convictions of those who stormed government buildings on Jan. 8, 2023.

He also rejected defense claims he should be disqualified for having been targeted by alleged plots, noting there was no homicide investigation and that threats or intimidation do not bar judges from presiding. The real victim, he said, was “the Brazilian state.”

The opinion cited Bolsonaro’s livestreams attacking the voting system, cabinet meetings discussing ways to neutralize opponents, meetings with ambassadors to undermine confidence in the vote, the use of the federal highway police to interfere in the runoff, and reports produced by the armed forces on electronic voting.

“Everyone followed the step-by-step process of delegitimizing something that has always been regarded as a national asset, a great source of pride for Brazil: the electronic voting system, the Electoral Court, and the free and regular elections held since the country’s return to democracy,” de Moraes said.

He cited the draft decree that envisioned emergency powers, along with the Jan. 8 attacks, arguing that both were part of a single plan aimed at violently abolishing Brazil’s democratic constitutional order.

De Moraes said Bolsonaro politicized the armed forces by calling them “my army” and invoking their support in broadcasts — rhetoric mirrored by those later arrested for the Jan. 8 riots. Such appeals to the military, he warned, have historically led to coups and authoritarian rule.

“Brazil almost returned to a dictatorship that lasted 20 years, because a criminal organization, formed by a political group, could not accept losing an election,” he said.

He praised two of the three armed forces commanders — from the army and the air force — for resisting coup pressures and stressed that the crime of coup is defined by the attempt to oust an elected government, regardless of success. Victorious coup leaders, he noted, do not face trial but subjugate democratic institutions themselves.

De Moraes also argued that the crime of attempting to abolish the democratic state is distinct from that of attempting a coup and cannot cancel one another out. The first seeks to weaken checks and balances from within government, he said, while the second aims to depose an elected administration.

Bruno Salles Ribeiro, a criminal lawyer, said the vehemence with which de Moraes treated the evidence points to heavy sentences, especially for Bolsonaro as leader of the group. Sartoti noted that leadership in a criminal organization both constitutes a separate crime under Brazilian law and aggravates penalties for the others.

“Politically, it shows the gravity of the coup attempt because the country’s top authority was directly involved,” he said. “It also shows that no one can attack democracy, regardless of their office.”

After de Moraes, Justice Flávio Dino cast his vote, fully siding with the rapporteur and calling for the conviction of Bolsonaro and the others. He stressed that crimes against democracy cannot be subject to amnesty or pardon.

Still to vote are Justices Luiz Fux, Cármen Lúcia and Cristiano Zanin, with a ruling expected Friday. A majority of three of the five votes is needed to convict.

Even if convicted, the defendants will not be jailed immediately, as appeals such as motions for clarification could delay enforcement, though rarely change the outcome. To bring the case before the full court, at least two votes for acquittal would be needed, creating a 3-2 split.

Pamela Villar, a criminal defense attorney and partner at São Paulo-based law firm Salomi Advocacia Criminal, noted it was expected that the rapporteur would deliver the most detailed vote, with the others deciding whether to follow or diverge. Given the stakes, she said, each justice is likely to address aspects of the charges and defenses in greater detail than usual.

She added that de Moraes’ opinion, while grounded in the evidence, did not directly confront all defense arguments, leaving room for divergences, whether on the weight of the evidence or on the degree of each defendant’s role. Justice Fux, for example, has already indicated he disagrees on a procedural issue, arguing the case should be heard by the full bench rather than the First Panel.

The trial unfolds in a fraught political climate. Bolsonaro’s supporters continue to mobilize in his defense and press Congress for an amnesty law covering those involved in the coup acts, while center-right parties seek to distance themselves from the backlash tied to radicalization.

On Sunday, Independence Day in Brazil, Bolsonaro’s supporters filled São Paulo’s Paulista Avenue with calls for amnesty and displayed U.S. flags appealing for help from Donald Trump.

On Tuesday morning, as de Moraes read his opinion, the U.S. Embassy in Brasília reposted a U.S. State Department statement marking Brazil’s Independence Day.

The post pledged to “stand with the people of Brazil who seek to preserve the values of freedom and justice” and said that “for Justice Alexandre de Moraes and the individuals whose abuses of authority have undermined these fundamental freedoms – we will continue to take appropriate action.”

Courthouse News reporter Marília Marasciulo is based in Brazil.