Brazilian federal supreme court judge Alexandre de Moraes is possibly the bravest man on the planet. Last year he stared down the world’s richest man, Elon Musk, and won. Now he is facing up to the world’s most powerful man, US President Donald Trump, and he remains defiant.
According to Trump, Moraes constitutes a threat to US security, which resulted in Trump slapping sanctions on Moraes in terms of the Global Magnitsky Human Rights Accountability Act. The Magnitsky Act was named after Russian lawyer Sergei Magnitsky, who uncovered a $230m tax fraud scheme involving Russian officials. After reporting the corruption, he was arrested, accused of the fraud himself and detained in Moscow’s Butyrka prison. There he suffered from untreated serious medical conditions. After nearly a year in custody Magnitsky died in November 2009, with reports indicating he was beaten by prison guards.
According to Human Rights Watch the purpose of the Magnitsky Act is to sanction foreign officials worldwide for human rights violations or significant corruption, authorising asset freezes and US entry bans. According to Trump, Moraes violated human rights by abusing his judicial authority to target political opponents (being former Brazilian president Jair Bolsonaro), shield corrupt allies (presumably current Brazilian president Luiz Inácio Lula da Silva), and suppress dissent, often in co-ordination with other Brazilian officials.
Trump has also taken aim at the Brazilian Federal Supreme Court (akin to our Constitutional Court) for banning social media accounts of far-right Brazilian activists that spread misinformation about Brazil’s 2022 election, which Lula won by a tight margin. Trump also revoked the US visas of eight of the 11 justices. But he singled out Moraes for the most drastic measures, freezing all his nonexistent assets in the US and preventing US companies from dealing with him. Most Brazilians rallied around Moraes. The media speculated that he may now no longer have Visa or Mastercard credit cards or a Netflix account.
But this is all just deflection by Trump. The main reason for his actions against Moraes is to avenge the criminal investigation against his bosom buddy, Bolsonaro, on charges that he planned a coup d’état to remain in power after he lost the 2022 election. Bolsonaro’s son, Eduardo, spent months in Washington lobbying the Trump administration to come to his father’s rescue. Trump clearly sees parallels between his own criminal prosecutions and those of Bolsonaro, which he calls “unjustified” and a witch hunt.
But Trump and Bolsonaro seem either to misunderstand the criminal procedure system or are deliberately making blatantly false statements about it. If the proceedings are indeed unjust, Bolsonaro will have a chance to challenge the prosecutor’s case and state his case with evidence. He has a full right of defence, and is not being denied that despite being placed under house arrest by Moraes earlier this week for violating the pretrial precautionary measures that were imposed by the court, specifically concerning social media use and political messaging.
It is not Moraes who is conducting the investigation but the Brazilian prosecutor-general, Paulo Gonet. Moraes’ task is merely to oversee the investigation. Some on Brazil’s political right accuse him of overreach in politically charged cases, but these claims are widely seen by legal scholars as straw man arguments aimed at discrediting lawful rulings. Once completed, the prosecutor’s evidence will be evaluated by all the judges of the Supreme Court. Bolsonaro will have a chance to state his defence, and if he is guilty he must pay for his actions, like any convicted defendant.
If the evidence doesn’t hold up he will be a free man. The Brazilian Supreme Court has already ruled that there is prima facie evidence of the crimes he is accused of, and that Bolsonaro must stand trial. This had resulted in him having to surrender his passport and, following repeated breaches of his bail conditions, having to wear an ankle bracelet so his movements could be tracked. He had also been ordered not to go near any foreign embassies in Brasília.
The charges against Bolsonaro are serious. They include an attempted coup, leading a criminal organisation and planning the violent overthrow of Brazil’s democratic system. According to Gonet, the plan was code-named the “Yellow and Green Dagger” (a reference to the previous colours of the Brazilian national football team, which had disgracefully become a uniform for Bolsonaro supporters at their dwindling rallies). The charges also include plans to assassinate Lula and Moraes, and monitoring journalists and other people linked to Lula.
The 272-page indictment dated February 18 contains the details of these plans. It is backed up by evidence from whistle-blowers such as Col Mauro Cid (one of the key planners of the attempted coup and other alleged crimes) and other military figures. To the Brazilian military’s credit, despite some support for Bolsonaro most officers refused to endorse or take part in the plot.
These charges were presented to Moraes, asking him to authorise criminal proceedings against Bolsonaro and his co-accused. Moraes authorised it. This says nothing about Bolsonaro’s guilt or not, which the prosecutor must still prove. It is not up to Trump or Bolsonaro and their most radical supporters to try to stop this process. They may feel pity for Bolsonaro all they want, but the law must follow its course. If Bolsonaro is innocent, it will not be too difficult for his elite lawyers to prove his innocence, but attacking the process is disingenuous.
The destruction Bolsonaro supporters wreaked on the Praça dos Três Poderes (Square of the Three Powers of Government) in Brasília on January 8 2023, a rather pathetic attempt to emulate the January 6 2021 storming of the Capitol in Washington, was clear for all to see. To many of Bolsonaro’s ardent defenders, the absence of the military and that the rioters were not armed with machine guns is proof that it couldn’t be a coup. But there is nowhere any requirement that a coup can only be carried out by the military or with live ammunition. The rioters made good use of whatever they could lay their hands on to bring about their destruction and achieve their aim.
Trump’s use of the Magnitsky Act against a defender of democracy and human rights is perverse. After the US president slapped 50% duties on imports from Brazil (the highest from any country), many Brazilians called for Bolsonaro's son, Eduardo, (who seems to have fled to the US) to be charged with treason. Meanwhile, Moraes remains the embodiment of a principled jurist paying the price for standing up to power. For that I believe he will go down in history as one of the greatest jurists of all time, with others such as Mahatma Gandhi and Nelson Mandela.
• Myburgh is an attorney practising in Johannesburg and São Paulo.
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