What We Could Learn from Brazil (and Vice Versa) About Presidential Impeachment Procedures (and Related Matters)

Posted in: Election Law

This week the lower house of Brazil’s national legislature (the Chamber of Deputies) voted to approve the impeachment accusations leveled against President Dilma Rousseff, which means the case moves over to the upper house of the legislature, the Federal Senate. (If she is convicted after a trial in the senate, she would be removed from her presidential office.) With a population of about 200 million, Brazil is second in size only to the United States among federal presidential republics in the Western Hemisphere. And in fact Brazil’s constitution (the most recent version of which was adopted in 1988) is patterned substantially after that of the United States. In light of these relationships, I compare and contrast in the space below a few key aspects of the two nations’ respective approaches to presidential impeachment, and suggest a few ways in which these two large presidential democracies could benefit from more detailed study of each other’s procedures.

#1 Brazil’s Automatic 180-day Removal From Duty Provision

One very interesting provision of Brazil’s constitution requires that, as soon as the Federal Senate institutes proceedings in an impeachment trial (which in Rouseff’s case could be as early as next month), the president “shall be suspended from his [or her] duties” for a period of 180 days or until the end of the trial, whichever comes first. If, at the end of 180 days, the trial is still going on, the president’s suspension “shall end, without prejudice to the normal progress of the [still ongoing trial] proceedings.”

As many readers may intuit, the U.S. Constitution contains no such provision. And indeed it 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. Consider, for example, the impeachment of President Bill Clinton about 17 years ago. Some astute commentators suggested at that time that it would have been a good thing for President Clinton, Vice-President Gore, and the nation for President Clinton to temporarily turn the presidential reins over to Gore (by invoking the temporary inability concept in the 25th Amendment). It would have been good for President Clinton because he would have looked more selfless, and perhaps had more credibility if and when (as actually happened) he resumed office upon his acquittal in the Senate. Gore would have been benefitted because his brief stint as acting president might have served him well when he ran for the presidency himself a few years later, and also because (and this would have been good for the country as well) a transition to Gore as the president for the balance of Clinton’s term (had he been convicted) would have been smoother if it had occurred in stages.

As intimated above, in America the 25th Amendment allows a president to do the right thing (by enshrining a textually broad notion of temporary presidential inability), but we still have to trust a president to take the right step. By contrast, in Brazil the constitution itself takes the decision out of the president’s hands, and requires removal during the trial. At least food for thought.

One reason Brazil’s approach here might be particularly apt for that country is another procedural difference between the two constitutions. In Brazil, a presidential impeachment does not pass the lower house unless two thirds of the members vote to accuse—in the United States (as we saw in the Clinton episode), it takes only a bare majority of the House of Representatives to impeach (even though in both counties it takes two thirds of the upper house, the Senate, to convict in an impeachment proceeding.) Because a two-thirds requirement in the lower house may tend to reduce the incidence of insubstantial and partisan impeachment drives, those cases that do move to the Senate may tend (on average) to be more weighty, thus making temporary suspension of duties more sensible. Again, at least food for thought in America about whether Brazil’s two-thirds requirement for impeachment itself may make sense (especially in times of excessive partisan zeal, the kind America has witnessed over the last two decades).

#2 The Role of the Veep

Another reason temporary suspension in Brazil may be a particularly sensible thing there is that the vice president in Brazil’s system is formally a member of the president’s group of insiders. In the United States, vice presidents (as I wrote about in a recent column for this site) tend to be elected as part of a “ticket” in which voters are essentially required to vote for a president and vice president of the same party. But such vote-tying is not required by the Constitution or federal law, and could be changed by one or more states if they wanted to. In Brazil, the constitution itself seems to dictate such vote-tying: the constitution explicitly refers to the “running mate” concept and provides that the “Election of the President of the Republic shall signify the election of his running mate as Vice President.”

Elsewhere, the Brazil constitution makes explicit something that has happened (with increasing frequency in modern times) in the United States but that is nowhere written into the Constitution: namely, that the “Vice-President of the Republic, in addition to other powers conferred on him. . . . shall assist the President whenever called on by him for special missions.”

Electoral and political history (combined with vice-presidential replacement procedures in the 25th Amendment) have moved the American veep more deeply into the executive branch in many ways, but Brazil makes explicit that the vice president is on—indeed a key member of—the president’s team.

#3 Lines of Succession

America’s Constitution (in Article II) leaves to Congress to specify by law which “officers” shall be in the line of succession to exercise presidential authority in the event of a dual (presidential and vice-presidential) vacancy. The most recent congressional enactment on this topic (passed in 1947) includes members of Congress (the Speaker of the House and the President Pro Tempore of the Senate) at the top of the line of succession after the vice president. Akhil Amar and I have argued that this congressional statute (which is different from some of its predecessors) is itself unconstitutional, because members of Congress are not “officers” within the meaning of the Constitution’s Succession Clause. We argue instead that only executive and judicial officials can be included in the line of presidential succession. One important reason we offer for our reading is that Congress should not be able to use impeachment (of both president and vice president) to vault its own legislative leader(s) into the White House; when the framers chose a presidential over a parliamentarian form of government, they wanted the president to be independent from—and not controllable by—Congress.

Alas, Brazil has copied our mistake here, and built it into their constitution itself, which provides that if the president and vice president offices are vacant, the head of the lower house (and then the head of the upper house) of the legislature shall assume presidential power. Interestingly, though, the consequences of Brazil’s (mistaken) emulation and entrenchment of current American statutes is not as dangerous as it might be, because Brazil’s constitution also provides that in the event of a dual presidential/vice-presidential vacancy, a new national election shall take place within 90 days. So a member of the legislature would hold presidential power for no more than 90 days before the voters could have their say. This sounds great, but how do you hold a meaningful election in a country as big as Brazil (200 million inhabitants) or the United States on such a short timeline? Perhaps I’m jaded by the incessant president elections in the U.S. to which we are treated these days, but 90 days seems awfully short.

#4 National Popular Vote

Speaking of presidential elections, Brazil’s constitution provides for a direct, national popular election for president. So, in this regard, Brazil chose not to copy our convoluted (and flawed, as I have argued on this site and elsewhere) method of presidential election. And to the extent that some critics of popular election worry about undue influence of third parties and undesirable prospects of plurality winners (concerns that, as I have argued, don’t seem to hold up in any event), Brazil requires a runoff election between the top two vote getters if no one received more than 50 percent of the vote on the first go-round. So the ultimate presidential winner is always someone who obtained support from a majority of voters at the dispositive presidential election.

#5 Criminal (as Opposed to Impeachment) Provisions

In the United States, there is a broad consensus that sitting presidents cannot be criminally prosecuted until they leave or are removed (via impeachment) from the presidency (although, as Bill Clinton and Paula Jones know, presidents can be sued civilly while they are in office.) Brazil’s constitution makes explicit provision for the possibility that a sitting president can be criminally tried while in office, but the criminal indictment/charging instrument cannot come from any ordinary federal or regional prosecutor—it comes (as do impeachment accusations) from a vote of two thirds of the lower house of the legislature. And any criminal trial of a sitting president is to be held in the Brazil Supreme Court, not an ordinary court. The president cannot be arrested (and thus effectively removed from office) until after a conviction in the Supreme Court. And, apparently, criminal charges against sitting presidents can be brought only for acts related to the performance of official presidential duties. Personally I think having impeachment proceedings precede any criminal process for sitting presidents makes sense, but Brazil’s approach does offer another way to approach the matter.