The new investigation opened against former president Jair Bolsonaro (PL), due to the suspicion of acting to lead the United States to pressure the Federal Supreme Court (STF) for amnesty, worsened his legal situation in the criminal case regarding the coup plot. Court ministers, investigators, and legal experts assess that the new facts complicate the former head of the Executive's defense in the trial, which should take place by September, in addition to expanding the list of accusations against him in another context.

Bolsonaro and his defense still harbored hope that they could achieve a lighter sentence, or at least a divergent vote in the First Panel, but the assessment is that these chances have diminished with the new facts from the day before yesterday, when the former president was targeted by a Federal Police (PF) operation, had to wear an electronic ankle bracelet, and will need to comply with precautionary measures.

When he was questioned by Minister Alexandre de Moraes last month, Bolsonaro adopted a milder tone in his answers. At the time, allies were suggesting the possibility that he could receive a sentence less than the maximum, which can reach up to 43 years.

For a faction of the STF, this hypothesis has become more difficult due to the new revelations, although the imposition of house arrest for humanitarian reasons is not ruled out, as Bolsonaro is 70 years old and has health issues that led him to undergo another surgery three months ago. For these ministers, heard privately, the investigation brought new elements that the former president acted to obstruct justice and undermine the ongoing process in the Court.

PF investigators, in turn, assess that the material seized on Friday — Bolsonaro's cell phone and a pen drive found in the bathroom, in addition to $14,000 — may reinforce ongoing investigations and open other avenues. This was the fourth time that the PF executed search and seizure warrants against the former president.

In addition to the five crimes for which he is already responding in the coup plot case, including coup d'état, Bolsonaro is now also being targeted for obstruction of justice, attack on sovereignty, and coercion in the course of the process. In the decision that authorized Friday's operation, Moraes understood as 'express execution acts and blatant confessions' the articulation of the Bolsonaro clan for the United States to impose sanctions in Brazil if his case was not archived.

Part of these intended sanctions would have materialized in the tariff increase announced by President Donald Trump, who stated that Bolsonaro's trial should be halted 'immediately.' After the statement from the American ally, Bolsonaro and one of his sons, federal deputy Eduardo Bolsonaro (PL-SP), began to publicly defend that the retaliation could cease if amnesty were approved in favor of him and those convicted from January 8.

For members of the PF, the Attorney General's Office (PGR), and Supreme Court ministers, this was interpreted as a collaboration between the two in an attempt at undue intervention by a foreign country in a legitimate process conducted by Brazilian justice.

— The message is clear for the judges: he (Bolsonaro) is already reacting preemptively to a future conviction. They think: 'He is even mobilizing the U.S. government.' This reinforces the judges' conviction that that person is guilty — evaluates lawyer Thiago Bottino, a professor at FGV Direito Rio.

This opinion is shared by lawyer Alexandre Wunderlich, a professor of Criminal Law at IFP:

— The evidence is already produced (in the coup plot process), but in context, it is an important addition that impacts the conduct being judged by the STF.

Meanwhile, lawyer Gustavo Sampaio, a professor at the Federal Fluminense University (UFF), adds that the acts currently being investigated may, if further explored, open a new process against Bolsonaro:

— These new facts may trigger a new criminal action to investigate the crimes pointed out by the PF, such as coercion and attack on national sovereignty.

Precautionary measures

By Moraes' determination, Bolsonaro will have to wear an electronic ankle bracelet, must remain at home at night, and cannot approach the perimeter of embassies. The minister also prohibited him from conversing with foreign authorities and other investigated individuals, which includes Eduardo. For the PGR, these measures are necessary to 'ensure the application of criminal law and prevent the defendant's flight.'

Supreme Court ministers consider that these precautionary measures imposed are 'proportional' and may have wide-ranging effects: not only hindering the former president's possibility of leaving the country but also sending a message to Brazilian and foreign authorities planning to coerce the Court, whether through threats of impeachment of ministers or through international sanctions. On the night before yesterday, hours after the operation targeting Bolsonaro, the U.S. government announced the suspension of visas for Supreme Court members.

A hope of Bolsonaro's defense, before the new revelations, was a reduction of sentence through the debate on the necessity of overlapping two crimes: attempted coup d'état and violent abolition of the Rule of Law. Both penal types were created with the Law for the Defense of the Democratic State of Law, which was sanctioned, with vetoes, by the former president in 2021.

If the conduct attributed arises from the same context, the understanding that tends to prevail is that one crime can absorb the other — that is, the broader conduct would prevail when calculating the sentence, avoiding double punishment. However, if it is proven that there are autonomous actions with distinct purposes, there may be a sum of sentences in material competition.

In the final arguments presented last Monday, the PGR argues that, although the crimes of attempted coup d'état and violent abolition of the Democratic State of Law are provided for in the same part of the Penal Code and both aim to protect the democratic order, they are legally distinct and can therefore be charged separately.

For the Prosecutor's Office, each one protects a specific legal asset: while the crime of violent abolition seeks to prevent the destruction of the very structure of the Democratic State — preventing, for example, the functioning of the Powers of the Republic — the crime of coup d'état focuses on the attempt to overthrow the government that is in power, even if the institutions, in theory, continue to exist. Therefore, the coincidence of objectives does not prevent both crimes from being recognized as autonomous and punished separately.

So far, the prevailing understanding in the STF, in the cases of the coup acts of January 8, is that the crimes should be applied jointly. With the facts that emerged on Friday, the understanding in the Court is that this assessment will be maintained.