By one definition, the roots of Brazil’s current crisis lie not in political corruption, or a cratering economy, or a bloated state, but in the graft, loan-sharking, and money-laundering practiced by Lord William Latimer, a member of King Edward III’s inner circle.
In 1376, Latimer was removed from office by the British Parliament, which had chosen to put the notorious baron on trial rather than convict him based solely on the “clamour of the commons.” The world’s first recorded impeachment had taken place, and it quickly became “the most powerful weapon in the political armoury, short of civil war,” according to the British legal historian Theodore Plucknett. “The most awkward question” at the time, Plucknett wrote, “was whether this was really ‘due process.’” Had the government granted Latimer all his legal rights?
Six hundred and forty years later, that continues to be the question. The tumultuous events in Brazil this week—the speaker of the lower house of Congress’s shocking annulment of that chamber’s impeachment vote against President Dilma Rousseff, the speaker’s panicked withdrawal of that annulment, Rousseff’s failed appeal to the Supreme Court to invalidate the proceedings, and, most recently, the upper house’s emphatic vote to suspend Rousseff and open an impeachment trial against her—mirror the push and pull of a fierce debate in the country over whether Rousseff has been afforded due process.
Put simply: Does the action against Rousseff have a solid legal basis, or is it purely political?
Supporters of the impeachment note that Congress is charging Rousseff with a genuine violation of the law—using budgetary tricks to fund social programs and conceal the sorry state of government finances—and that the proceedings are adhering to constitutional guidelines. (Rousseff denies the charges.) More broadly, they point out that Rousseff’s fiscal mismanagement, and failure to stop her political allies from plundering public resources, have left the country’s economy and politics in tatters.
Opponents of the process claim the leaders of the campaign against Rousseff, including the now-suspended speaker of the house, seized on the accounting maneuvers as a pretext to obstruct investigations into their own alleged corruption. What’s taking place in Brazil might look like a juridical impeachment process, they argue, but it’s actually a blatantly political effort to unseat an unpopular leader. In briefly annulling the impeachment vote in the lower house, for example, acting Speaker Waldir Maranhao criticized lawmakers for disclosing their position on impeachment in the media before the vote, and party leaders for instructing members how to cast their ballots.
Although the specifics of this debate are unique to Brazil, the larger themes are not. Confusion and controversy over where politics ends and the law begins is inherent, to varying degrees, in the impeachment process around the world. The British colonies borrowed impeachment from England—where no one has been impeached since 1806—and Americanized it, and Brazil borrowed impeachment from the United States and Brazilianized it. America’s Founding Fathers enshrined impeachment in the U.S. Constitution primarily to prevent the country’s chief executive from abusing or neglecting his office (they had just overthrown a king, after all). “[F]ar from being above the laws, [the executive] is amenable to them in his private character as a citizen, and in his public character by impeachment,” James Wilson argued.
What this setup meant in practice, Alexander Hamilton reasoned, is that the impeachment of a government official would by definition be deeply divisive in a democracy. The grounds for impeachment “are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself,” he wrote. Charging officials with such offenses was bound to polarize the public and Congress:
The prosecution of them, for this reason, will seldom fail to agitate the passions of the whole community, and to divide it into parties more or less friendly or inimical to the accused. In many cases it will connect itself with the pre-existing factions, and will enlist all their animosities, partialities, influence, and interest on one side or on the other; and in such cases there will always be the greatest danger that the decision will be regulated more by the comparative strength of parties, than by the real demonstrations of innocence or guilt.
Presented with an impeachment proceeding, politicians won’t suddenly dress in judge’s robes and dispassionately investigate malfeasance—especially when their rivals are the accused. They’re liable to give as much consideration to power dynamics as to proof of wrongdoing.
And yet, Hamilton wrote, it would be foolish to try and remove politics from a national inquiry into whether an official committed politico-criminal offenses against the public. And since the nation was the wronged party, why not put the nation’s representatives in charge of the inquiry rather than a handful of appointed Supreme Court justices? The House of Representatives, whose members were directly elected, would initiate the impeachment proceedings on behalf of the “people,” and the Senate, whose members at the time were not directly elected, would conduct the impeachment trial, serving as a “dignified” and “independent” mediator between the accused and his “accusers” in the House. The Senate wasn’t the perfect venue for impeachment, Hamilton conceded, but it was the least imperfect of the various options.
“[B]y vesting the impeachment power in the Congress and not in the Supreme Court, the Founding Fathers specifically blurred [the] very distinction between popular and legal justice,” Andrew Sullivan wrote in The New York Times, not long after the impeachment trial of President Bill Clinton ended in acquittal.
This has long been true in Brazil, as well. In his 1923 study The Constitutional System of Brazil, for example, Herman James cited a messy attempt in 1893 to bring charges against President Floriano Peixoto to argue that “the impeachment process is essentially a political, not a judicial, proceeding, in spite of the safeguards that may be put around it by law.”
And it’s also still true in the United States—just recall Hillary Clinton condemning “this vast right-wing conspiracy that has been conspiring against my husband” in 1998, shortly before Bill Clinton was impeached on charges of perjury and obstruction of justice over his affair with Monica Lewinsky. In An Affair of State: The Investigation, Impeachment, and Trial of President Clinton, the judge Richard Posner wrote that since the early 19th century, it’s been “reasonably clear that impeachment should not be used to express merely political disagreement between Congress and the President or other officials. … [A]doption of the doctrine of political impeachment would nudge us in the direction of a parliamentary regime, in which the legislature is at least nominally supreme.”
But Posner refuted the argument, advanced by the legal philosopher Ronald Dworkin, among others, that the largely partisan divisions on Clinton’s impeachment in Congress exposed the proceedings as a “kind of coup.” (Sound familiar?) The politicization of impeachment, Posner asserted, is a matter of degrees, not a rigid dichotomy between political and apolitical processes. Was the sole motive for impeaching Clinton political? The evidence, according to Posner, was inconclusive.
A similar dynamic is playing out in Brazil right now. Is the campaign against Rousseff unadulterated politics? That’s a very hard question to answer conclusively. The institution of impeachment is something of a necessary evil, particularly in presidential systems where power is separated rather than concentrated, where the head of government has a fixed term in office, and where there’s no ability to hold a vote of no confidence in that head of government when the relationship between the executive and legislature becomes dangerously dysfunctional. Impeachment is dispiritingly political, but then so is holding public office.
There are ways Brazil’s political system could be reformed so the path to impeachment is steeper. As Maranhao, the current speaker of the house, suggested, lawmakers could be prohibited from publicly revealing their position on impeachment ahead of votes in Congress. Party leaders could be prevented from telling their members how to vote. Efforts could be made to reduce the number of parties—by one measure, Brazil is the most politically fragmented country in the world—so that Brazilian politics functions less like a parliamentary system in need of the occasional no-confidence vote.
That said, Brazil’s impeachment process also includes safeguards that those in other countries don’t. Vikram David Amar, the dean of the University of Illinois law school, notes that unlike the U.S. Constitution, the Brazilian constitution calls for the president to be suspended for up to 180 days during his or her impeachment trial. This has a certain logic, he argues, especially when combined with the requirement that a hefty two-thirds of the lower house initiate impeachment proceedings (in the U.S., only a simple majority in the House is needed):
[I]t may seem “un-American” (or at least “un-North-American”) for someone to have his duties taken away from him before he has been convicted in a trial-like proceeding. But we should remember that the impeachment mechanism is not principally about punishment—it is instead focused on the removal of people from office who are no longer fit to perform their official jobs. And the mere impeachment (accusation) vote by the lower house may (combined with the factual predicate on which it was based) make it very hard for a president to continue to do his job while an impeachment trial is going on.
The case for Rousseff’s impeachment and removal from office now goes to trial in the Senate. There, politicians will sit in judgment of other politicians. The job of those senators is to determine, in good faith, whether there’s any more to it than that.