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Impeachment: A Mechanism between Political Accountability and Legal Responsibility? Common Law Sources and the Brazilian Originalist Model

In: Global Journal of Comparative Law
Author:
Ranieri L. Resende PhD. in Law, Postdoctoral Researcher, Federal University of Rio de Janeiro, Rio de Janeiro, Brazil
Visiting Postdoctoral Research Fellow (2020), Max Planck Institute for Comparative Public Law and International Law, Heidelberg, Germany
Visiting Doctoral Researcher (2017–2018), New York University School of Law, New York, NY, USA
Excellence Fellow (2018–2019), Rio de Janeiro Research Foundation, Rio de Janeiro, Brazil, ranierilr@ufrj.br

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Abstract

This paper seeks to analyze impeachment as a mechanism of institutional control of political actors, searching for its historical and theoretical bases in common law, so as to uncover the sources of the Brazilian originalist model. The Brazilian model deserves special attention due to its highly distinct, descriptive constitutional hypotheses. Before attempting to define the nature of impeachment, the main objective was to place the general idea of responsibility within the theoretical scope of representative democracy, accounting for potential failures resulting in frustration of expectations of constituencies and/or abuse of power by representatives. While identifying structural distinctions between political accountability and legal responsibility, it was appropriate to bring forth the requirement of legal violation in classical Athenian precedents (eisangeliai). In the end, this analysis goes over historical mutations of the impeachment mechanism: a) establishment of procedural parameters (British first cases); b) inceptive prerequisite of legal violation (Stuart period); c) attemptable specification of appropriate legal hypotheses (US); d) constitutional provision of precise categories of legal violation (Brazil).

1 Introduction1

Recent impeachment cases have inspired scholars of comparative law and politics to dedicate time to the analysis of this mechanism,2 e.g., in South Korea (Park case, 2016–2017), Brazil (Rousseff case, 2015–2016), Paraguay (Lugo case, 2012), Peru (Kuczynski cases, 2017–2018, and Vizcarra case, 2020), South Africa (Zuma case, 2016–2017), Albania (Meta case, 2021), and the United States (Trump cases, 2019, 2021).

In an attempt to explain the dual legal-political nature of the impeachment process, Ronald San Juan and Bryan Tiojanco have listed four common factors:

  1. a)the power to decide on impeachment would not be under the jurisdiction of the courts, but of other political institutions;
  2. b)offenses submitted to the impeachment process, and their respective penalties, would generally pertain to the political sphere;
  3. c)not all violations subject to impeachment would be criminal in nature;
  4. d)the results of an impeachment case would be largely influenced by public opinion and the political capital of the political actor individually involved.3

Nevertheless, some argumentative flaws can be extracted from the struggle to universalize these premises, considering in general:

  1. a)the attribution to decide on impeachment to a governmental branch other than the Judiciary does not exclude the application of legal criteria;
  2. b)sanctions of political nature, such as the suspension and revocation of an electoral mandate and the suspension of political rights, are also enforceable by judicial bodies, especially by electoral courts;
  3. c)the acknowledgment of civil and administrative violations seems insufficient to remove illegality as eventual requirement for an impeachment trial;
  4. d)political factors may jointly influence constitutional and supreme courts, as cases of judicial review of legislative acts may suggest.

Despite the diversity of constitutional parameters of the impeachment processes in several States, the highly descriptive hypotheses for impeachment in Brazilian constitutions deserve special attention, as far as they are unparalleled by any other constitutional paradigm.4

This normative characteristic should, in theory, have been able to produce a distinct effect on the legal accuracy of the respective judgments, which would reinforce the originalist argument for the application of strictly legal parameters.

Nonetheless, it is worth discussing the theoretical correlation in between impeachment and political accountability in Brazilian law.5 Apparently, this legal-political correspondence would seem to convey the idea that this control mechanism would not be strongly associated with legal responsibility,6 reinforcing the narrative that the respective decision-makers would have a broad selection of political criteria at hand to justify dialectical choices: “to admit v. to disallow”, “to prosecute v. to reject”, “to condemn v. to acquit”.

This notion has dominated Brazilian Supreme Court’s case law, as shown by plenary decisions whose rationes decidendi chose variations of the same essential position, alternately considering impeachment as a mechanism of “political”,7 “predominantly political”,8 “political-criminal”,9 or “political- administrative”10 nature.

In order to contribute to the debate, this paper seeks to provide criteria to verify the nature of the impeachment process (political, predominantly political, legal, or strictly legal) and the consequent type of responsibility connected to it. In this sense, theoretical and historical framework seem to be adequate to analyze the comparative experience.

As largely recognized by the legal literature, common law sources have played a fundamental role in the constitutional design of the Brazilian impeachment mechanism,11 especially since the first Republican Constitution of 1891, drafted under the Rui Barbosa’s protagonism,12 and followed by the subsequent national constitutions.

The methodological inspiration for this research comes from Ernst H. Kantorowicz’s masterpiece The King’s Two Bodies,13 which, by showing the feasibility of long-term analysis of highly complex phenomena, seems applicable to the study of the impeachment process. Kantorowicz’s work makes it possible to identify deep structural mutations of a diversely rooted legal- political phenomenon, steeping away from the excessively presentist, conjunctural approach of other studies.14

After considering these preliminary legal, theoretical and methodological aspects, we may proceed by framing the general issue of responsibility within the democratic paradigm.

2 Paradox of Democracy: Representation

2.1 A Minimalist Conception of Democracy

Despite the fact that the precursory idea of democracy originated from Athenian politics in the 5th and 4th centuries bc, its theoretical consolidation as a cosmopolitan political project only came to light by the 18th century ad, being then reinforced and gradually expanded after 1945 to the point of presently consolidating itself as a global value inherent to good government.15

Considering its long conceptual development, the term “democracy” has taken on several meanings and undergone empirical, theoretical changes. In spite of its polysemous character, it seems viable to adopt a minimalist conception of democracy, as proposed by John E. Roemer, who posits that “democracy should be defined as a set of institutions and practices whose intention is to implement a certain kind of equal participation of citizens in the political process”.16

The Western view of democratic government was well summarized in Winston Churchill’s speech to the British Parliament in November 1947: “No one pretends that democracy is perfect or all-wise. Indeed, it has been said that democracy is the worst form of Government except for all those other forms that have been tried from time to time”.17

The recognition of the superiority of the democracy’s historical experience comes with the perception of its problems and failures. In this regard, Cicero warned about the existence of potential deviant practices in the three classic types of political constitution,18 in the sense of understanding the inherent risks to the political structures in which the governing body is entrusted to one person (monarchy), to a few chosen people (aristocracy), or when it is exercised by all (democracy).

In its degenerated version, even democracy may evolve into demagogic practices, inasmuch as the contamination of political discourse invades the public arena and compromises the good reasons as fundamental argumentative premises for deliberation.19

Back to the Roemer’s concept, a complement for his minimalist perspective must be considered, in order to include representation on the democratic equation.

2.2 Representation: A Democratic Complement

In an openly democratic environment, the main commitment in the public sphere is making decisions through effective public deliberation, during which the access to deliberative forum should be open to all. Thus, every citizen must have the capacity to convince and to be convinced by good reasons. On the other hand, all citizens undertake the obligation to accept the deliberative choice made by the majority in the public arena.20

However, the deliberative process carried out before the typically representative political bodies does not allow similar participation by all citizens, due to the reserve of autonomy granted to their respective representatives and the restricted character of the deliberation forum.21

As opposed to direct democracy, according to James Madison, the existence of representation in a republic stems from the impossibility of a large group of citizens being able to participate in every decision-making process in the broad scope of a modern state.22

Once the empirical inefficiency of an ideal “face-to-face democracy” is admitted, we must acknowledge the need for institutions through which collective will may be expressed. These institutions should be simultaneously representative and deliberative, that is, composed of elected representatives who have legitimacy to debate, deliberate, and decide on behalf of their constituencies.23

Therefore, the representative regime shall play a complementary role in achieving the purposes desired by democracy, provided that some principles applicable to the government system’s dynamics are adopted.

In this regard, Bernard Manin lists the following structural premises:

  1. a)government representatives chosen by regular and periodic elections;
  2. b)decision-making process of those who govern with a certain degree of independence in relation to the intentions of the electorate;
  3. c)free speech for the governed people to express their opinions and political positions, without any control by those who rule;
  4. d)public decisions submitted to the scrutiny of public debate.24

One of the most persuasive theoretical criticisms against representation lies in the risk of its dynamics compromising social pluralism,25 compared to the very broad participatory spectrum produced by direct democracy. This characteristic may result in an unbalanced support for homogeneity, which might undermine political representation of heterogeneous portions of the society, as shown in the section related to minority representation.26

3 Immanent Problems of Representative Democracy

Among the problems of representative democracy, it is possible to outline two issues that may structurally impact the long-lasting integrity of the government: 1) protection of minorities; 2) control mechanisms connected to the frustration of expectations of constituencies and/or the abuse of power by representatives.

3.1 Protection of Minorities

Regarding political minorities, empirical analyses have led to the conclusion that the modern election format, in isolation, may not be the most effective method to represent the cognitive diversity of large social groups in smaller representative assemblies. This is due to a certain tendency of political practices to elect socially and economically homogeneous representatives, disregarding the interests of society’s most diverse segments.27

If majority rule constitutes an essential mechanism to enable the equal participation of citizens in the national political process, the strength of the majority may sway elections in favor of the suppression of minorities,28 for the purpose of weakening their representation and consequently increasing their comparative vulnerability.29

From the point of view of normative architecture, the complementary conception of constitutional democracy combined with the safeguard of fundamental rights and freedoms seems essential to prevent the compromise of minority legal interests, curbing potential misrepresentations that may be carried out by the majority.30

Thinking institutionally about the phenomenon, the operative performance of the Judiciary under the scope of social pluralism may have a guaranteeing importance in ensuring constitutional supremacy and protecting minority parts of political society,31 in order to counterbalance eventual excesses committed by the majority based on the standards of the Rule of Law.32

In this sense, a republican-oriented view suggests that a democratic system in which “the winner takes it all” should be avoided, preventing majority coalitions from exerting their potentia abutendi (destructive capability) over minority interests, and impairing representation of social heterogeneities.33

Illustratively, there are different ways to reinforce the participatory strength of the voting minority in political processes by promoting submajoritary rules,34 which are standardized circumstances from which the minority’s will shall produce relevant legal effects on institutional dynamics.35

In this way, submajority rules may reduce the risk of the “tyranny of majority”, in order to balance power by also promoting political practices,36 i.e., by establishing a consensus around the construction of institutional agendas (e.g., in courts and parliamentary committees),37 or by improving the minority initiative with relevant value and effect (e.g., recall process).38

3.2 Frustration of Expectations and Abuse of Power: Accountability v. Responsibility

Another structural problem of representative democracy lies in the risk of subversion of constituents’ expectations and abuse of power by elected representatives. In this respect, two general types of response may arise as political and institutional control systems.

3.2.1 Accountability: Political Mechanism

The first general control scheme is based on political accountability, as a mechanism centered in the representatives’ qualitative performance as seen by their legitimizing constituents. This relevant apparatus does not operate based on legal sanction parameters, in order to reinforce its predominantly political nature within the dynamic relationship of representation.

This is due to a necessary connection between the scheme of elections and accountability,39 without which the pillars of democracy would crumble. Unlike legal responsibility, accountability is primarily defined by the relationship between representatives and their constituency, which undergoes periodical revision in the form of elections, aiming to reward or dismiss representatives and respective political parties according to their publicly perceived performances.40

More than a method to protect the choice of selecting new political actors, elections are also related to the past performance and political accountability, inasmuch as they convert the selective process into a control mechanism associated with the electorate’s expectations on expired or ongoing terms.

This paradigm affects representatives and political parties directly. The constituencies will evaluate whether their expectations have been fulfilled during the representative’s term (selection & reward), or to which extent has the political actor departed from such expectancies (rejection & political sanction).

In spite of the suggestion of an empirical research that positive selection seems more frequent than the rejection of representatives who have underperformed,41 the functional recognition of accountability in democratic dynamics should not be underestimated.

In this sense, the remedy of recall deserves special attention, since it allows voters to assess the performance of the representatives during their terms,42 by initiative of a submajority, who submits the qualitative analysis of the representative’s performance to a potentially negative, critical judgment by the majority.

It is worth mentioning that the recall mechanism does not imply opinions on, or recognition of legal violations. In summary, the recall is a very broad political-electoral assessment of performance, distant from considerations regarding legal responsibility.43

3.2.2 Legal Responsibility: Genealogy of the Legal Violation in Classical Athenian eisangeliai [εἰσαγγελίαι]

Apart from political accountability for their performance under electoral legitimacy, representatives are subject to legal responsibility. They are autonomous actors subordinate to civil and criminal rules, under the premise that any representative power is also legally liable.44 At this point, admitting the eventual exemption of such power from legal consequences would be equivalent to removing the fundamental limits of political action as established by the legal system that defines it.

Legal responsibility acts as a second control mechanism in a representative democracy. It mainly refers to potential conducts of abuse and deviation by representatives, who are subject to judgment by a political-institutional branch, which shall intrinsically be guided by impartiality based on previously established laws.45

Historically, legal responsibility seems to set forth procedures for the control of magistrates and political actors, with roots as deep as the Athenian political structure of the 5th and 4th centuries bc.

In this period, we may find a mechanism to try magistrates suspected of corruption (ἐπιχειροτονία των ἄρχων = epicheirotonia ton archon). Any citizen could take the initiative to denounce a suspect magistrate before the “People’s Court”, with the possibility of an immediate suspension of the magistrate’s public duties, followed by a trial that could result in their permanent impairment and other punishments.46

Applied to certain political actors, the denunciation (εἰσαγγελία = eisangelia) targeted highly relevant violations, such as the formal or material suppression of the Constitution of Athens, treason, and political corruption,47 especially in case the corrupt speaker deceived the Assembly. It is important to emphasize that, in changeable historical contexts, the criteria for denunciation of serious offenses could be fulfilled without the specific presupposition of violation of the law, such as acts of religious profanation.48

The equivalence between eisangelia and accusations of crimes against the City-State is evidenced in several extant records,49 with emphasis to the work attributed to Aristotle,50 who considers Solon the creator of the right of denunciation, with the original aim of judging those who conspired against Athenian democracy (e.g., tyranny). A posteriori, this hypothesis would have been amplified to encompass other categories of violation.

Against common sense, the trial of political leaders, generals and magistrates by the People was not a rare occurrence in classical Athens. Over 140 eisangeliai have been found, with the imposition of the death penalty in more than 100 cases, considering the set of citizens between 20 and 40 thousand.51

Along with notorious references to religious offenses, military defeats, and political persecutions,52 some reports seem to show that the basis for the eisangeliai was the violation of the law, as follows:

  1. a)Kimon of Lakiadai (Member of the Council of Generals, 5th century bc): accused of receiving a bribe from the Macedonian King, he was acquitted despite the death penalty being requested by the accusers;
  2. b)Aristarchos (5th century bc): accused of treason and attempting to supersede democracy, he was presumably sentenced to death and executed;
  3. c)Antiphon of Rhamnous et al. (Athenian ambassadors in Sparta, 5th century bc): accused of treason, which resulted in the convictions of property confiscation, revocation of citizens’ rights, death penalty, and deprivation of funeral rituals in Attica;
  4. d)Epikrates of Kephisia et al. (Athenian ambassadors in Sparta, 4th century bc): accused of misconduct, disobedience of instructions received to negotiate the peace treaty, and providing the Assembly with untruthful information, they were all sentenced to death in absentia;
  5. e)Kallistratos of Aphidnia (4th century bc): accused of receiving a bribe to present proposals to the Assembly contrary to the People’s interests, he was sentenced to the death penalty.53

It may be gleaned from these cases that the accusations covered not only crimes specifically described by the “Law of Eisangelia” (νόμος εἰσαγγελτικός = nomos eisangeltikos), but also other categories of highly relevant crimes.54

From a procedural point of view, it is possible to identify essential characteristics in the classical Athenian denunciation, such as:

  1. a)it could be initiated by any citizen;55
  2. b)there were hypotheses of joint procedures and decisions by two different bodies (Council and Assembly):56
  1. in some cases, the eisangeliai were addressed at the Council of Five Hundred (βουλή = boule),57 who gave a kind of preliminary verdict, which could become definitive according to the circumstances;
  2. in other situations, the denunciation was directed at the Assembly, when the Council acted in preparation of the trial and the final decision was given by the “People’s Court” (δῐκαστήριον = dikasterion), which generally represented the alter ego of the Assembly itself (ἐκκλησία = ekklesia) in the performance of jury assignments.

Opportunely, some English-speaking authors have translated the Greek word eisangelia in close equivalence to impeachment,58 given the procedural similarities between both processes, which were carried out by institutions also competent to produce laws (Athenian Council and Assembly – British Houses of Parliament – US Houses of Congress), motivated by legal violations of high severity classified as “crimes against the State”.59

Considering these genealogical similitudes, the analysis of the development of impeachment process will predominantly radiate from the paradigm of legal responsibility, as a means of institutional control device of abusive performances (or deviations) by relevant political actors.

This legal perspective seems fundamental for a better understanding of the impeachment process, inasmuch as the mechanism has its historical roots in time-tested legal practices, norms, and customs, as shown below in the case of Britain and the United States.

4 Impeachment: A Historical Note on Britain and the United States

Although the impeachment process is commonly associated with the figure of the president in a republic, this mechanism precedes modern republics and the emergence of the presidential system. For this research, it is informative to look for milestones of the development of the impeachment in British and American constitutional history.

4.1 Early British Tradition: Procedural Parameters

As highlighted by Frank Bowman,60 impeachment is a British invention inaugurated by the Parliament in the 14th century ad aimed at resisting the monarchical tendency to absolutism and to contain repulsive public policies, by removing the ministers who implemented them. In this historical framework, the original practice of impeachment is related to the very signature of the Magna Carta in 1215, which aimed to curb the repercussions of the king’s arbitrary tendencies operated by the respective public authorities.

According to the current literature,61 the first impeachment would have occurred in 1376, in the case involving William Latimer and Richard Lyons, who were accused, by acclamation of the members of the House of Commons, of misrepresentation of their public duties to obtain undue advantage for their own benefit among other charges.

In the process, Latimer, who was lord and chamberlain of King Edward III,62 presented a series of requests regarding matters of competence and procedure, among which stood out:

  1. a)the respective charges in writing;
  2. b)the possibility of representation by mandate;
  3. c)the opportunity to respond with respect to each accusation;
  4. d)a trial by his own peers in the House of Lords.63

In response, the House of Commons as a whole moved to accuse the Defendant and presented the corresponding charges to the Upper House, before which Lord William Latimer was allowed to defend himself against each of the allegations, which turned the successive argumentative rounds between the Respondent and his accusers into a true criminal proceeding. In the end, Latimer was convicted, removed from his office, fined, and imprisoned.64

It is interesting to note that the processing of an impeachment procedure stemed from the demands of the defendant, based on the back and forth argumentation between accusation and defense, leading to judgment.65 This reveals a normative consolidation derived from a custom, which reinforces the final decision-making attribution of the Upper House.66

In general, the strengthening of the British Parliament in the Late Middle Ages may be correlated to the adoption of the practice of impeachment as a control mechanism of the Crown and its ministers, as it presents a reasonable alternative to revolution and civil war, since it held individual ministers responsible for their official acts and spared the king from being directly affected – a king can do no wrong; but his ministers can –.67

It is, however, impossible to trace a continuous evolution of the impeachment mechanism in history,68 especially when it comes to analyzing ideas and institutions of European Feudalism.69 The early years of the impeachment’s trajectory in the English tradition were also marked by advances and setbacks.

These variations can be identified, for instance, in the misguided use of the mechanism for the purposes of political persecution resulting in arrests, deaths, and proscriptions carried out between 1397 and 1398 by King Richard II and his allies, or in the conviction of defendants for crimes that had no previous legal provision (e.g., case of Michael de la Pole, Count of Suffolk, 1388), in sharp contradiction to the principle nulla poena sine praevia lege – there is no penalty without a prior law to establish it –.70

4.2 Structuring Mutation (Stuart Dynasty): Legal Criterion

Notably during the English Stuart Dynasty (1603–1714),71 the impeachment process underwent mutations and kept a certain distance from its medieval paradigm. At this point, procedural practices were gradationally readjusted, in order to adopt the following criteria:

  1. a)the means of evidence required by law;
  2. b)a greater attachment to the premise of legality;
  3. c)a more rigorous admissibility scrutiny by the House of Lords regarding the charges presented by the House of Commons.72

This is illustrated by the case of the Earl of Strafford, Minister of King Charles I, who was accused of treason by the House of Commons in 1641. During the process, however, members of the Lower House feared not being able to meet the legal requirement to provide two witnesses able to testify about the respective facts before the Upper House.73

The Strafford Impeachment process was hence replaced by a bill of attainder, whose procedure was more flexible and exempted the Parliament of a precise justification regarding the legal violations perpetrated by the Defendant. This also brought a distinct political component to the proceeding, as the final parliamentary decision was submitted to the ratification of a Monarch who was clearly pressured by political forces, including public opinion.74

The criterion of legal violation implicitly sought to ensure that the legislation produced by Parliament would prevail over the acts of an executive branch, which had absolutist intentions.75

A historical example of this was the Impeachment of Francis Bacon in 1621. Then lord chancellor, he was accused of receiving bribes from litigating parties in cases he presided over.76 After his complete confession before the House of Lords, when he claimed that there was no connection between the acts of corruption and his attributions as a chancellor, Bacon was permanently removed from his public office, in addition to being fined and sentenced to prison at the Tower of London – where he was kept for a short time.77

In spite of political deviations, the most prominent procedural advancement brought by the Stuart Dynasty was the demand for a violation of the law – Law of the Land –, which justified the admissibility of the impeachment process under the purview of the House of Lords.78 This fundamental feature was structurally incorporated into the mechanism, and has come to reinforce its reliance on legal responsibility, moving away from its merely political dimension.

4.3 Absorption by American Legal Culture

The transposition of impeachment to the United States had its milestone in the assimilation of the mechanism even during the colonial period, based on knowledge of its application for the removal of English judges by the alleged practice of functional crimes of high severity.79

In this sense, American colonial legislators preeminently absorbed the British tradition of impeachment implemented during the Stuart Era,80 as shown by the requirement of acts against the law and not just contrary to moral parameters or political arrangements.

After the Declaration of Independence in 1776, several states incorporated constitutional regulations for the impeachment mechanism, applicable to the head of the executive branch of each state, on grounds of bribery, extortion, maladministration, and other hypotheses.81 Nevertheless, its definitive integration into American Law was centered in its absorption by the Constitution of 1789.

Initially, the Constitutional Convention rejected proposals connecting impeachment to overly vague conducts of maladministration, mal-practice, or neglect of duty, which would subject the president, judges, and other federal officials to the immediate political interference of the Congress, without any indication of illegality.82

Likewise, the Convention ruled out any constitutional proposal related to the proscription device (attainder), which might be dangerously discretionary for institutional stability and the separation of powers scheme.83

4.4 Politically Adaptable Legal Types: Original Sin?

Alexander Hamilton was inspired by the British practice of moving jurisdiction away from the Supreme Court and dividing attributions between the two houses of Congress, so they could function independently as accusing body (House of Representatives) and judging body (Senate).84

On the same occasion, the Federalist issued a noteworthy warning about the existence of an inherent “awful discretion” in the scope of the impeachment trial, on the basis that the legal limits should not be interpreted in an extensive way,85 otherwise the control mechanism would cover hypotheses that could cross the boundaries of the strict exercise of the public performance under scrutiny.86

Another breakthrough was to categorize the illegal conducts covered by the American impeachment process, limited to the constitutional hypotheses of treason, bribery, and high crimes and misdemeanors.

Even though it would be expected that the legal requirement would play a predominant role from this point on, this is not seen in later institutional practice.

Unlike the constitutional definition of “treason” (Art. iii.3) and the legal concept of “bribery”, established in both common law and statutory law, the meanings of high crimes and misdemeanors do not contain specifications precise enough to identify the types immediately covered by them.87

This is supported by historical evidence: up to the American Civil War (1861–1865), the impeachment was frequently used not as an exceptional mechanism aimed at investigating serious legal violations, but as a routine instrument colored by strong political-factional motivations. This can be seen in the impeachment process initiated in 1804 against Supreme Court’s Justice Samuel Chase, under the initiative of the group led by then President Thomas Jefferson to destabilize the Judiciary branch.88

Although the subsequent final decision favored the acquittal of Justice Chase, with reference to the eight accusations based on the practice of highly relevant crimes and misdemeanors, one of the indirect objectives of the process would have been achieved, namely to curb the intensity of the political performance of federal judges and the Supreme Court.89

In this sense, it is interesting to notice that federal judges have been impeached under relatively vague charges of high crimes and misdemeanors in US history, including abuse of office and violation of public trust, with sparse motivations based on the “violation of the Law”.90

Another notable precedent was the impeachment process against (unelected) President Andrew Johnson in 1868, focused on the charge that the Executive usurped the Senate’s duties by monocratically exonerating the Secretary of State of War, in direct violation of the legislation applicable at that time (Tenure in Office Act, 1867), considered unconstitutional by the Presidency amid a notorious partisan conflict.91

The Senate ultimately refused to condemn President Johnson by a narrow margin, thanks to a small but essential number of opposition Senators, who argued that the accusations brought by the House of Representatives did not encompass offenses of sufficient gravity. The Senate attributed the alleged offenses to the Defendant’s error of judgment rather than to a conscious, intentional abuse of power.92

In a subtle sense, broad interpretations around open, politically adaptable, legal types (high crimes and misdemeanors) could turn the mechanism of impeachment into a disguised proscription (attainder), to the extent that any slight violation of the law would be able to support it before the Congress,93 regardless of the proportionality test applicable to the quality and the effects of the respective offenses.94

Even though the literature uses the Andrew Johnson case as an example of the triumph of legal principle over political conjuncture, which was unfavorable to the Defendant at his time,95 the same criterion applied for the acquittal could easily be assimilated to the decision-making in a viable conviction, given the highly conceptual openness of the legal types covered and their facultative use for factional purposes.96

These conceptual debates, both in British and American legal history, generated irrefutable repercussions on Brazilian constitutional formation from 19th century onward.

5 Originalist Model of the Brazilian Impeachment

Due to the strong historical connection between common law sources and the Brazilian originalist concept of impeachment, the analysis of the imperial initiative and the first Republican model seems necessary, in order to better identify some patterns and deviations in the mechanism’s dynamic normativity. In this sense, it could be beneficial to search for an integrated originalism, which reveals foundations of later constitutional structures.97

5.1 (Proto-)Impeachment during the Imperial Era (before 1891)

Almost seventy years before the establishment of impeachment’s constitutional model by the first Republican Constitution of 1891, the Brazilian Imperial Constitution of 1824 created a scheme of responsibility applicable to ministers.98 From a historical and comparative perspective of the Brazilian practice, we prefer to classify it as a proto-impeachment mechanism.

Despite the explicit recognition of the Monarch’s full immunity by the Constitution, Pimenta Bueno established the responsibility of the ministers as a foundation stone of the whole constitutional system, without which absolutist tendencies of one single power could only be corrected by revolutions.99

At this point, we may hear echoes of the political premise adopted by early British cases – a king can do no wrong; but his ministers can –,100 notwithstanding the notorious constitutional inspiration extracted from the doctrine of Benjamin Constant, even with structural deflections, in the Brazilian separation of powers scheme.101

In his classic writings on responsibility of ministers in constitutional monarchy (1815), Constant criticizes the vague English categories of “high crimes and misdemeanors” and, simultaneously, defends the standards of the French Constitutional Charter of 1814, which restricted the functional responsibility of ministers to the legal hypotheses of treason and corruption (trahison et concussion).102

Despite this criticism, Benjamin Constant strongly supports the division of the competences to accuse and judge ministers, in order to attribute them to different legislative bodies (Chambre des députés et Chambre des pairs), under the inspiration of British precedents.103

According to this perspective, an important aspect in Brazilian Constitution of 1824 may be observed in the allocation of potestative attributions between the Chamber of Deputies (accusing body) and the Imperial Senate (judging body), centered in Articles 38, 47.i, 47.ii, based on Constant lessons as well as on British constitutional history.104

In this sense, the respective constitutional hypotheses of responsibility of the ministers were defined as: i. treason; ii. corruption and bribery; iii. abuse of power; iv. nonobservance of the Law; v. acts against the freedom, security, and propriety of the citizens; vi. any dissipation of public money (Art. 133).105

In two subsequent articles, the Constitution excluded the legal defense by following oral or written Emperor’s orders in favor of the accused minister (Art. 135) and, more important for the future impeachment model, established that an upcoming law would outline the definition of offenses and their corresponding processes (Art. 134).

The Law came out on 15 October 1827 with significant attachment to the constitutional matrix,106 in order to keep the original list of affected officials, through the inclusion of state secretaries and councilors alongside ministers. The promulgation occurred in spite of legislative arguments against it, including a bill aiming to regulate the responsibility of all public agents instead.107

Through an innovative movement, the Law of 1827 inaugurated the typology of “crimes of responsibility”, to distinguish them from common criminal offenses, and was essential in specifying criminal sanctions which exceeded the mere dismissal from public office. Sanctions included imprisonment, exile, and death penalty, along with the reparation of damages caused to private persons and the State.108

Despite the gravity of these criminal penalties and the occurrence of a few initiatives by the Chamber of Deputies, a search based on legal literature did not identify reports of any imperial minister who was convicted by the Senate.109

One famous case centered on accusations against Minister José Clemente Pereira based on several charges promoted by the Chamber in 1829 and 1831, both directly connected to the political crisis that ended the reign of Dom Pedro I in this very year, but without further legal consequences for the Defendant, especially before the Senate.110

According to Paulo Brossard de Souza Pinto, the (proto-)impeachment mechanism was gradually substituted by other political schemes, especially the adoption of methods of crisis prevention, with the disuse of criminal procedures against imperial ministers.111

5.2 Strict Legality in the First Constitutional Model of the Brazilian Presidential Impeachment (1891)

As previously registered, common law sources have played a prominent role in the structural design of the Brazilian model of impeachment, especially noted in the constitutional initiative of the newborn Republic.

This influence seems clear in the earliest draft of the first Constitution of the Republican Period prepared by the Provisional Government in July 1890.112 The respective Article 62 established proceeding for trial and removal of the President by the Senate. After reading this provision, then President Deodoro da Fonseca wrote a critical note in red: “This subjects the President to political majorities and partisan passions!”,113 in an attempt to show the Executive’s opposition to institutional mechanisms of control and the branch’s skepticism toward openly political judgments by the Parliament.

In another curious situation, when leafing through the final draft of the Constitution to be sent to Congress for deliberation, the same President Fonseca would have asked “where was the article authorizing the President to dissolve the Parliament”, to which then Minister Rui Barbosa would have replied that such a provision would not be compatible with a constitution based on the presidential system.114

Despite the resistance of an Executive eager for power and political immunity, which could give way to abuses, the drafters of the Constitution of 1890/1891 adopted a clear, cautious stance regarding the limits of the President’s powers.

According to this understanding, it is necessary to note a much more detailed description of the “crimes of responsibility”,115 which could lead to presidential impeachment, with emphasis on the closed list – numerus clausus – of the hypotheses inserted in the Constitution of 1891.

In this regard, the first Brazilian Republican Constitution stated:

Art. 54 – Crimes of responsibility are the acts of the President against:

  1. 1)the political existence of the Union;
  2. 2)the Constitution and the Federal Government;
  3. 3)the free exercise of political Powers;
  4. 4)the tenure and legal exercise of political or individual rights;
  5. 5)the internal security of the Country;
  6. 6)the integrity of the administrative probity;
  7. 7)the constitutional custody and use of public money;
  8. 8)the budget laws approved by Congress.116

Surpassing the previous Brazilian imperial paradigm of (proto-)impeachment, the drafters of Republican Constitution strived to define, with more refined terminology, which categories of illicit acts could lead to the impeachment of a President.

When reporting the rejection of the three previous constitutional drafts that included open117 and electoral118 provisions for punishable presidential performances, João Barbalho notes that the approved constitutional draft chose to specify the “crimes of responsibility” in paragraphs i to vii of Article 54 (plus paragraph viii by amendment of the Parliamentary Committee), so as to “avoid, in this regard, everything that could give rise to arbitrary sanctions, everything that could characterize the special judgment established by Constitution as purely political or discretionary”.119

In addition, the same article established that “these crimes will be defined by special law”, which was done by Law No. 30 of January 8th, 1892.

The following legal categories, related to “crimes of responsibility” applicable to the President, were distributed throughout 48 articles:

  1. a)Arts. 4 to 13: crimes against the political existence of the Union;
  2. b)Art. 14: crimes against the Constitution and the federal government;
  3. c)Arts. 15 to 24: crimes against the free exercise of political powers;
  4. d)Arts. 25 to 32: crimes against the legal exercise of political or individual rights;
  5. e)Arts. 33 to 36: crimes against the internal security of the Country;
  6. f)Arts. 37 to 48: crimes against the integrity of administrative probity;
  7. g)Arts. 49 to 51: crimes against the constitutional custody and use of public revenue and crimes against budget laws.120

At the first sight, the descriptive rigor of the types specifically provided for by the Law No. 30 (1892) would have adopted the strict legality of the impeachment model based on the Brazilian Constitution of 1891, upholding the prevalence of qualified legal criteria in contrast with open political parameters.

There are, however, authors who defend that some provisions contained in that first Republican legislation on impeachment established extremely open categories, as Lucio de Mendonça admitted in his consultative opinion of 1901, recognizing that the federal law on the responsibility of the President “is full of hypotheses of political crimes”.121

An interesting warning was also given by José Soriano de Souza on the vague nature of the article 43 of Federal Law No. 30 (1892), which establishes a specific type of “crime of responsibility” centered on the President’s conduct of “misusing his authority, committing excesses or abuses not specified by the law, which have caused damage to any individual or to the State”,122 which could refer to any behavior without legal criteria, based on the generic prerequisite of direct or indirect damage caused by the President to anyone.

At this point, we may recall the important debate during the US Constitutional Convention on the political risks arising from the proposed types of maladministration, mal-practice, and neglect of duty,123 which were rejected under the argument that their vagueness and excessively open meanings could encourage an arbitrary use of power by the Congress.124

Against this dangerous risk, João Barbalho explicitly states that Article 54 of the Constitution of 1891 removed, both from the Chamber of Deputies and the Senate, all discretionary power that would otherwise belong to them.125 In this sense, excessively open provisions of the first legislation on impeachment should have been considered constitutionally abusive and contrary to the Constitution itself.

Rui Barbosa, one of the main drafters of the Constitution of 1891, sought to explain the departure of the concept of impeachment from the British model, by calling it “political judgment of state officials”, in joint criticism to the US regime highlighted in the Andrew Johnson case, which was based on an “extremely dubious violation of an ordinary Law”.126

While dealing in 1893 with the sufficiency of the legal basis for filing an impeachment request against then President Floriano Peixoto, Rui Barbosa highlights a structural distinction of the constitutional provision of impeachment in Brazil:

The president does not break one law, but many. Transgressions do not only violate ordinary laws: they directly violate the constitutional law. How can we admit, therefore, that a denunciation based on such grounds may no longer be the subject of deliberation? How can one conceive that the Chamber of Deputies must refrain from discussing serious accusations against the Head of State, when their legality is based on facts and reasons of such great consideration? Resolving in this or that direction, is at the discretion of the Congress, according to the law. In accordance with the law; not with conveniences; because, in exercising this prerogative, the Congress is a court, not a political entity.127

By functioning as a court, Congress shall be guided by strict legal consonance. To reach a valid judgment, it must view matters exclusively through the lens of legality during all stages of the impeachment process.

Consistent with the procedural perspective, on the other hand, Law No. 27, of January 7th, 1892,128 lists in its 33 (thirty-three) articles all the stages of the impeachment process, from the moment of the inaugural denunciation by any citizen before the Chamber to the Senate’s final decision.129

Regarding the feasibility of President’s automatic removal after the approval of the impeachment’s denunciation by the Chamber of Deputies, Henrique Coelho emphasizes the prudence recommended by the Constitution of 1891, which did not grant the Chamber such decision-making power, as it is “much more influenced by passions than the Senate, which is responsible for the trial”,130 thus reinforcing the deliberative distinction between accusing and judging bodies.

In a later opinion on the impeachment mechanism established in the Constitution of Bahia (1905), where there was a general provision of expanded responsibility: “in the exercise of his functions, the governor will assume full responsibility for the acts he performs for himself or through his secretaries”, Rui Barbosa suggests:

I assume, therefore, that, in the foregoing text, they referred only to political responsibility [accountability].131 Especially because, if they wanted to include criminal responsibility in the proposition, they would have violated the nature of things. Political responsibility [accountability] may depend, to some extent, on the discretion of the lawmaker. Criminal responsibility, however, inevitably arises from the voluntary causal relationship between the facts and the individual who practiced them. […] Anyone who participates in the criminal act, governor or minister, will have for that fact the responsibility arising from his legal participation in that fact.132

Rui Barbosa’s explicitly systematic position deserves attention. It allows the reader to distinguish between the open character of political accountability and the restricted bases of legal-criminal responsibility, in accordance with the categorical dissimilarities already discussed.133

According to Mendonça de Azevedo, recognizing impeachment as an exclusively political process would be contrary to the Republican regime, insofar as it constitutes a jurisdictional process, “it can only be motivated by the perpetration of a crime defined by previous law […], ensuring full defense to whoever is accused”.134

Therefore, the rhetorical use of the British or American models of impeachment, to force the conclusion in favor of the recognition of the political, or predominantly political, nature of the Brazilian mechanism, seems unsubstantiated by theoretical-historical analysis.

Moreover, supporting arguments for the inherently political formation of impeachment in Brazil disregards the founding distinction inaugurated by the constitutional model of 1891, which had its roots in the proto-impeachment outline of the Imperial Era, especially in the relatively detailed types of “crimes of responsibility” created by the Law of 1827.135

If there is anything to point out at the end of this exposition, it is the eminently legal nature of the normative architecture of impeachment in the structure of Brazilian law (strict legality),136 whose design has persisted in all subsequent constitutional norms.137

However, the Brazilian institutional experience has promoted a significative change in the originalist attachment to these circumscribed parameters, in order to approximate the mechanism to the accountability boundaries and, simultaneously, keep distance from the legal responsibility paradigm.138

In several aspects, the Brazilian political practice may have converted the impeachment in a kind of Madisonian device headed to manage factional conflicts and interests,139 in a notorious deviation from the respective constitutional original purpose.

6 Conclusion

Given the constraints of this paper, it is not possible to provide further details on sources and cases to analyze such a rich, historically diverse mechanism.

The return path to the origins did not seek to exhaust the sources, but only to unveil some theoretical and historical perspectives, with the purpose of better understanding the sequential “natures” assumed by impeachment in its British and American traditions, which ended up inspiring its absorption by the Brazilian legal order arising from the constitutional model of 1891.

In this respect, it was essential to position the mechanism in the conceptual framework of representative democracy, from which the accountability and responsibility keys emerge to solve forthcoming structural problems, especially regarding deviations and abuses controllable by institutional branches.

In this sense, it was also important to highlight the perspective of legal responsibility inspired by the historical roots of classical Athenian eisangeliai of the 5th and 4th centuries bc, whose precedents could be based on situations of violation of law capable of sustaining the removal, dismissal, and conviction of political actors by the dual performance of the “People’s Court” (dikasterion) and/or the Council (boule).

On the other hand, political accountability may operate through electoral dynamics, according to the evaluation of representatives’ performances by their constituency, ranging from positive (selection & reward) to negative (rejection & political sanction).

Without such prior categorizations, the analysis of the impeachment would be limited to a superficial repetition of a positivist history of law, or be biased towards a historical presentism commonly adopted only to justify a posteriori decision-making options embraced by the researcher.

Considering the risk of eventual anachronism, we avoid some argumentative traps in this paper, since it would not make sense to use, for instance, contemporary cases from comparative law situated outside the historical assimilation of impeachment by respective national legal cultures.

This understanding motivated a search for the sequential historical mutations of the impeachment process, which have been remarkably guided by:

  1. a)the establishment of basic procedural parameters (British first cases);
  2. b)the inceptive prerequisite of legal violation (Stuart period);
  3. c)the attempted specification of appropriate legal hypotheses (US);
  4. d)the constitutional provision of precise categories of legal violation (Brazil).

So, it became possible to identify the strict legality of impeachment in the Brazilian normative framework, in comparison with the previous historical models of common law and the imperial (proto-)impeachment system.

Recognizing the predominantly legal nature of the presidential impeachment mechanism, based on the constitutional paradigm of 1891, decision criteria based on the law should not allow political justifications for the adoption of discretionary options in the choice between the binary keys “to allow / to disallow”, “to prosecute / to reject”, “to condemn / to acquit”, since there would be no margin for convenience and opportunity to be applied by the competent institutional bodies. In this sense, these branches shall decide within a transparent process of determining legal responsibility.

In spite of this distinct constitutional design, later legislation deviated from those principles by incorporating some open, imprecise types of “crimes of responsibility”. In addition, the Brazilian Supreme Court consolidated its case law in support of impeachment’s political nature.

Thus, a structural shift has progressively occurred in favor of the application of political parameters as merit criteria to admit and decide impeachment in Brazil, in order to blur the conceptual boundary between accountability and responsibility.

To conclude, it is worth recalling Cicero’s famous quote harkening back to the twilight of the Roman Republic: “Although in fact our generation had received the republic just like an extraordinary picture, but one already fading in the passage of time, not only did we neglect to renew it in the same colors in which it had existed, but we did not even take care of it so as to preserve at least its shape and, so to speak, its outlines”.140

May this be the last moment to restore, in time, the original colors of the Republic.

1

A preliminary version of this paper was published in Portuguese language by Legal Cultures Journal / Revista Culturas Jurídicas 7(17) (2020), which received important improvements after academic debate among researchers at the Federal University of Rio de Janeiro and thought-provoking suggestions of anonymous reviewers of the gjcl. Opportunely, I thank Profs. John Ferejohn and Jeremy Waldron for their inspiring “Democratic Theory Seminar” (nyu Law). I also thank the nyu Libraries for facilitating the access to rare materials, as well as the Max-Planck-Institut (Heidelberg, Winter/Spring 2020) for the postdoctoral research fellowship.

2

See, e.g., Tom Ginsburg, Aziz Huq and David Landau, ‘The Comparative Constitutional Law of Presidential Impeachment’, University of Chicago Law Review 88 (2021) 81. Retrieved 26 Dec. 2021 https://chicagounbound.uchicago.edu/uclrev/vol88/iss1/2; Mariana Llanos and Aníbal Pérez-Liñán, ‘Oversight or Representation: Public Opinion and Impeachment Resolutions in Argentina and Brazil’, Legislative Studies Quarterly 46(2) (2021) 357. Retrieved 28 Dec. 2021 https://doi.org/10.1111/lsq.12281; Yoon Jin Shin and Mattias Kumm, ‘Impeaching Remnants of the Authoritarian Past: A Constitutional Moment in South Korea’, Verfassungsblog (14 Mar. 2017). Retrieved 26 Dec. 2021 https://doi.org/10.17176/20170314-202108; Juliano Zaiden Benvindo, ‘Is There an Optimal Constitutional Design for Presidential Impeachments?’ I-CONnect (22 June 2016). Retrieved 26 Dec. 2021 http://www.iconnectblog.com/2016/06/is-there-an-optimal-constitutional-design-for-presidential-impeachment/; Maritza Paredes and Daniel Encinas, ‘Perú 2019: Crisis Política y Salida Institucional’, Revista de Ciencia Política 40(2) (2020) 483. Retrieved 26 Dec. 2021 https://doi.org/10.4067/S0718-090X2020005000116; Vikram D. Amar and Jason Mazzone, ‘The Power to ‘Try’ ‘Cases of Impeachment’: Some Reflections on the Finality, Transparency and Integrity of Senate Adjudications of Presidential Impeachments (Including that of Donald J. Trump)’, Chicago-Kent Law Review 95(2) (2021) 455. Retrieved 26 Dec. 2021 https://scholarship.kentlaw.iit.edu/cklawreview/vol95/iss2/2.

3

Ronald Ray K. San Juan and Bryan Dennis G. Tiojanco, ‘Impeachment’, in: Rainer Grote, Frauke Lachenmann and Rüdiger Wolfrum (eds), Max Planck Encyclopedia of Comparative Constitutional Law (Oxford: oup, 2016). Retrieved 10 Feb. 2021 https://oxcon.ouplaw.com/view/10.1093/law-mpeccol/law-mpeccol-e311?prd=MPECCOL.

4

See, e.g., current Constitutions of South Korea (Arts. 65, 111, 113), Philippines (Art. xi.2, xi.3), Brazil (Art. 85), Chile (Arts. 52.2, 53.1), Paraguay (Art. 225), Peru (Arts. 99, 113–114, 117), United States (Arts. i.3, ii.4), South Africa (Art. 89), and Albania (Art. 90). cf Zachary Elkins, Tom Ginsburg and James Melton, Constitute: The World’s Constitutions to Read, Search, and Compare. Retrieved 28 Dec. 2021 http://www.constituteproject.org.

5

In favor of the thesis of political or mixed accountability, see, e.g., Castro Nunes, Teoria e Prática do Poder Judiciário (Rio de Janeiro: Edição Revista Forense, 1943); Themístocles Brandão Cavalcanti, A Constituição Federal Comentada, Vol. 2 (Rio de Janeiro: José Konfino Editor, 1948); Paulo Brossard de Souza Pinto, O Impeachment: Aspectos da Responsabilidade Política do Presidente da República (Porto Alegre: Oficinas Gráficas da Livraria do Globo, 1964); Luis Roberto Barroso, ‘Impeachment – Crime de Responsabilidade – Exoneração do Cargo’, Revista de Direito Administrativo 212 (1998) 161. Retrieved 26 Dec. 2021 https://doi.org/10.12660/rda.v212.1998.47174; Carlos Alberto Menezes Direito, ‘A Disciplina Jurídica do Impeachment’, BDJur (2006). Retrieved 15 Feb. 2021 https://bdjur.stj.jus.br/jspui/bitstream/2011/9109/A_Disciplina_Jur%C3%ADdica_do_Impeachment.pdf. cf Antonio Riccitelli, Impeachment à Brasileira: Instrumento de Controle Parlamentar? (Barueri: Editora Manole, 2006) 17ff.

6

For the connection between Impeachment and legal responsibility, see Marcelo Cattoni de Oliveira, Alexandre de Moraes Bahia and Diogo Bacha e Silva, ‘Os Contornos do Impeachment no Estado Democrático de Direito: Historicidade e Natureza da Responsabilização Jurídico-política no Presidencialismo Brasileiro’, Anuario de Derecho Constitucional Latinoamericano 22 (2016) 17. Retrieved 22 Dec. 2021 https://www.kas.de/es/web/rspla/einzeltitel/-/content/anuario-de-derecho-constitucional-latinoamericano-20161. See also Marcelo Campos Galuppo, Impeachment: O que é, Como se Processa e Por Que se Faz (2nd edn, Belo Horizonte: D’Plácido, 2016). cf Margarida Lacombe Camargo, ‘O Impeachment em Visão Comparada Brasil - Estados Unidos’, Novos Estudos Jurídicos 25(2) (2020) 400. Retrieved 10 Mar. 2021 https://doi.org/10.14210/nej.v25n2.p400-416.

7

See rp 96/df, 3 Oct. 1947 [Brazil, stf, Pleno]. Retrieved 10 Feb. 2021 http://redir.stf.jus.br/paginadorpub/paginador.jsp?docTP=AC&docID=597869. See also pet 1.365–2/df (qo), 3 Dec. 1997 [Brazil, stf, Pleno]. Retrieved 10 Feb. 2021 http://redir.stf.jus.br/paginadorpub/paginador.jsp?docTP=AC&docID=86449.

8

See ms 20.941–1/df, 9 Feb. 1990 [Brazil, stf, Pleno]. Retrieved 10 Feb. 2021 http://redir.stf.jus.br/paginadorpub/paginador.jsp?docTP=AC&docID=85377.

9

See ms 21.623–9/df, 17 Dec. 1992 [Brazil, stf, Pleno]. Retrieved 10 Feb. 2021 http://redir.stf.jus.br/paginadorpub/paginador.jsp?docTP=AC&docID=85565.

10

See adpf 378/df (mc), 17 Dec. 2015 [Brazil, stf, Pleno]. Retrieved 10 Feb. 2021 http://redir.stf.jus.br/paginadorpub/paginador.jsp?docTP=TP&docID=10444582.

11

See Rafael Mafei Rabelo Queiroz, ‘A Natureza Jurídica dos Crimes de Responsabilidade Presidencial no Direito Brasileiro: Lições a partir do Impeachment de Dilma Rousseff’, e-Pública - Revista Eletrónica de Direito Público 4(2) (2017) 220. Retrieved 28 Dec. 2021 https://www.e-publica.pt/volumes/v4n2a10.html.

12

See Pedro Calmon, ‘Prefácio’, in: Obras Completas de Rui Barbosa, Vol. 17, No. 1 (Rio de Janeiro: Ministério da Educação e Saúde, 1946) XI.

13

Ernst H. Kantorowicz, The King’s Two Bodies: A Study in Mediaeval Political Theology (Princeton: Princeton University Press, 1957) 87ff.

14

See Ranieri L. Resende, ‘A Concorrência Harmônica entre as Diversas Metodologias e Abordagens em História: Uma Contribuição à Teoria Geral da História do Direito’, Revista Acadêmica da Faculdade de Direito do Recife 80 (2008) 171 at 181–189.

15

See John Dunn, Setting the People Free: The Story of Democracy (2nd edn, Princeton: Princeton University Press, 2019) XVII-XXV.

16

John E. Roemer, ‘Does Democracy Engender Justice?’, in: Ian Shapiro and Casiano Hacker-Cordón (eds), Democracy’s Value (Cambridge: cup, 1999) 56 at 57.

17

Richard M. Langworth (ed), Churchill by Himself: The Definitive Collection of Quotations (New York: Public Affairs, 2008) 573.

18

Marcus Tullius Cicero, On the Republic; and, On the Laws (David Fott tr, Ithaca: Cornell University Press, 2014) 47ff.

19

See Patricia Roberts-Miller, ‘Democracy, Demagoguery, and Critical Rhetoric’, Rhetoric & Public Affairs 8(3) (2005) 459. See also Hannah Arendt, Crises of the Republic: Lying in Politics; Civil Disobedience; On Violence; Thoughts on Politics and Revolution (San Diego: Harcourt Brace & Co., 1972) 24ff.

20

John Ferejohn, ‘Instituting Deliberative Democracy’ Nomos 42 (2000) 75 at 79.

21

See John Stuart Mill, ‘Considerations on Representative Government’, in: J. M. Robson and Alexander Brady (eds), Essays on Politics and Society by John Stuart Mill (Toronto: Toronto University Press; London: Routledge & Kegan Paul, 1977) 371 at 412.

22

James Madison, ‘Federalist Paper No. 10: The Same Subject Continued’, in: George W. Carey and James McClellan (eds), The Federalist (Indianapolis: Liberty Fund, 2001) 42 at 46–47. Retrieved 5 Jan. 2021 https://files.libertyfund.org/files/788/0084_LFeBk.pdf.

23

See James S. Fishkin, The Voice of the People: Public Opinion and Democracy (New Haven: Yale University Press, 1995) 78–80.

24

Bernard Manin, The Principles of Representative Government (Cambridge: cup, 1997) 6, 163ff.

25

Nadia Urbinati, ‘Representative Democracy and its Critics’, in: Sonia Alonso, John Keane and Wolfgang Merkel (eds), The Future of Representative Democracy (New York: cup, 2011) 23 at 31–32.

27

See Hélène Landemore, Democratic Reason: Politics, Collective Intelligence, and the Rule of the Many (Princeton: Princeton University Press, 2013) 108ff.

28

See Adrian Vermeule, ‘The Force of Majority Rule’, in: Stéphanie Novak and Jon Elster (eds), Majority Decisions: Principles and Practices (Cambridge: cup, 2014) 132.

29

See Hurst Hannum, ‘The Concept and Definition of Minorities’, in: Marc Weller (ed), Universal Minority Rights: A Commentary on the Jurisprudence of International Courts and Treaty Bodies (Oxford: oup, 2008) 49.

30

cf Luigi Ferrajoli, ‘Derechos Fundamentales’, in: Antonio de Cabo and Gerardo Pisarello (eds), Los Fundamentos de los Derechos Fundamentales (4th ed, Madrid: Editorial Trotta, 2009) 19 at 35–40.

31

As certain decision-making performances of the Bundesverfassungsgericht may show in the German legal tradition. See Peter Häberle, Verfassungslehre als Kulturwissenschaft (2nd ed, Berlin: Duncker & Humblot, 1998) 624–626. See also Sascha Kneip, ‘Konfliktlagen des Bundesverfassungsgerichts mit den Regierungen Schröder und Merkel, 1998–2013’, in: Robert Chr. van Ooyen and Martin H. W. Möllers (eds), Handbuch Bundesverfassungsgericht im politischen System (2nd ed, Wiesbaden: Springer VS, 2015) 281 at 293–294.

32

John Ferejohn and Pasquale Pasquino, ‘Rule of Democracy and Rule of Law’, in: José María Maravall and Adam Przeworski (eds), Democracy and the Rule of Law (Cambridge: cup, 2003) 242 at 257–260.

33

cf John Hart Ely, Democracy and Distrust: A Theory of Judicial Review (Cambridge [MA]: Harvard University Press, 1980) 79ff.

34

See Adrian Vermeule, ‘Submajority Rules: Forcing Accountability upon Majorities’, Journal of Political Philosophy 13(1) (2005) 74.

35

Adrian Vermeule, Mechanisms of Democracy: Institutional Design Writ Small (New York: oup, 2007) 85.

36

See Jon Elster, ‘Tyranny and Brutality of the Majority’, in: Stéphanie Novak and Jon Elster (eds), Majority Decisions: Principles and Practices (Cambridge: cup, 2014) 159.

37

The Rule of Four is highlighted in the context of the US Supreme Court, according to which the Court’s agenda is constructed by the Justices themselves who, in theory, can force the entry into the agenda of a specific case by the vote of at least four of the Court’s nine components, in order to avoid the tyranny of the majority and strengthen the degree of internal negotiation. See H. W. Perry, Jr, Deciding to Decide: Agenda Setting in the United States Supreme Court (Cambridge [MA]: Harvard University Press, 1991) 211–212.

38

See section 3.2.1.

39

See John Ferejohn, ‘Accountability and Authority: Toward a Theory of Political Accountability’, in: Adam Przeworski, Susan C. Stokes and Bernard Manin (eds), Democracy, Accountability, and Representation (New York: cup, 1999) 131.

40

See Jeremy Waldron, Political Political Theory: Essays on Institutions (Cambridge [MA]: Harvard University Press, 2016) 167ff.

41

cf James D. Fearon, ‘Electoral Accountability and Control of Politicians: Selecting Good Types versus Sanctioning Poor Performance’, in: Adam Przeworski, Susan C. Stokes and Bernard Manin (eds), Democracy, Accountability, and Representation (New York: cup, 1999) 55.

42

Vermeule (n 34) 75, 78.

43

See Shaun Bowler and Bruce Cain, ‘Introduction – Recalling the Recall: Reflections on California’s Recent Political Adventure’, PS: Political Science & Politics 37(1) (2004) 7. See also David Altman, Direct Democracy Worldwide (New York: cup, 2011) 16.

44

Nadia Urbinati, Representative Democracy: Principles and Genealogy (Chicago: University of Chicago Press, 2006) 58, 128.

45

Waldron (n 40) 167–168.

46

See Mogens Herman Hansen, ‘Athenian Nomothesia’, Greek, Roman, and Byzantine Studies 26(4) (1985) 345 at 352–353. See also Mogens Herman Hansen, Athenian Democracy in the Age of Demosthenes: Structure, Principles, and Ideology (London: BCPaperbacks, 1999) 220ff.

47

See Hansen (n 46, 1999) 213ff.

48

See Herman Hager, ‘On the Eisangelia’, Journal of Philology 4(7) (1872) 74 at 78ff. See also Douglas Maurice Macdowell, ‘Eisangelia (εἰσαγγελία)’, in: Simon Hornblower, Antony Spawforth and Esther Eidinow (eds), Oxford Classical Dictionary (4th edn, Oxford: oup, 2012) 494.

49

See Jon Elster, ‘Accountability in Athenian Politics’, in: Adam Przeworski, Susan C. Stokes and Bernard Manin (eds), Democracy, Accountability, and Representation (New York: cup, 1999) 253 at 260–262.

50

Aristotle, The Athenian Constitution; The Eudemian Ethics; and, On Virtues and Vices (H. Rackham tr, London: William Heinemann Ltd.; Cambridge [MA]: Harvard University Press, 1935) 31, 123–125.

51

Mogens Herman Hansen, Eisangelia: The Sovereignty of the People’s Court in Athens in the Fourth Century BC and the Impeachment of Generals and Politicians (Odense: Odense University Press, 1975) 11.

52

See Eleni Volonaki, ‘Abuse of the eisangelia in the Latter Half of the Fourth Century bc’, in: Chris Carey, Ifigeneia Giannadaki and Brenda Griffith-Williams (eds), Use and Abuse of Law in the Athenian Courts (Leiden: Brill, 2018) 293 at 300–306.

53

Hansen (n 51) 71ff. See Martin Ostwald, From Popular Sovereignty to the Sovereignty of Law: Law, Society, and Politics in Fifth-Century Athens (Berkeley: University of California Press, 1986) App A.

54

Hager (n 48) 78–79.

55

Ostwald (n 53) 9.

56

See Luciano Canfora, Il Mondo di Atene (Bari: Editori Laterza, 2011) 404–406. See also Hansen (n 51) 23ff.

57

Or they were addressed at the Council of the Four Hundred, depending on the respective historical interstice. cf Canfora (n 56) 423.

58

See, e.g., Raphael Sealey, ‘Ephialtes, Eisangelia, and Council’, in: P. J. Rhodes (ed), Athenian Democracy (New York: oup, 2004) 310 at 320; R. K. Sinclair, Democracy and Participation in Athens (New York: cup, 1988) 147, 158; Deirdre Dionysia von Dornum, ‘The Straight and the Crooked: Legal Accountability in Ancient Greece’, Columbia Law Review 97(5) (1997) 1483 at 1490, 1495; Franco Montanari, Brill Dictionary of Ancient Greek (Rachel Barritt-Costa et al. trs, Madeleine Goh and Chad Schroeder eds, Leiden: Brill, 2015) 611.

59

It is a non-literal equivalence, due to a comparative approximation of its historical use, considering that the word impeachment in English language is etymologically rooted in the archaic French terms empechement, empeschement, associated with the medieval Latin impechementum, impechiamentum. With the meaning of “accusing”, the word is treated as a representation of the medieval Latin impetĕre, but without the corresponding etymological connection. Oxford English Dictionary (Oxford: oup, 2020). Retrieved 5 Jan. 2021 https://www-oed-com.proxy.library.nyu.edu/view/Entry/92175?redirectedFrom=Impeachment&.

60

Frank O. Bowman, III, ‘British Impeachments (1376–1787) and the Preservation of the American Constitutional Order’, Hastings Constitutional Law Quarterly 46(4) (2019) 745 at 754–755. Retrieved 28 Dec. 2021 https://repository.uchastings.edu/hastings_constitutional_law_quaterly/vol46/iss4/2.

61

ibid. See H. Lowell Brown, High Crimes and Misdemeanors in Presidential Impeachment (New York: Palgrave Macmillan, 2010) 15–16. cf Gabrielle Lambrick, ‘The Impeachment of the Abbot of Abingdon in 1368’, English Historical Review 82 (1967) 250 at 270ff.

62

Frederic William Maitland, The Constitutional History of England: A Course of Lectures Delivered by F. W. Maitland (Cambridge: cup, 1908) 215.

63

Mary L. Volcansek, ‘British Antecedents for U.S. Impeachment Practices: Continuity and Change’, Justice System Journal 14(1) (1990) 40 at 42–43.

64

ibid.

65

See T. F. T. Plucknett, ‘The Origin of Impeachment’, Transactions of the Royal Historical Society 24 (1942) 47 at 69–71.

66

Based on an isolated reference to the work of Tacitus (Germania, 1st century ad), Blackstone admits that the origin of the separation between the accusatory and decision-making functions can be found in the political constitution of the Germanic people, exercised respectively by the House of Commons and the House of the Lords in the English impeachment process. With due respect to the author, this argument indicates a certain degree of idealization. cf William Blackstone, Commentaries on the Laws of England: Book the Fourth (Oxford: Clarendon Press, 1769) 257.

67

Goldwin Smith, A Constitutional and Legal History of England (New York: Charles Scribner’s Sons, 1955) 196.

68

See Walter Benjamin, ‘Über den Begriff der Geschichte’, in: Rolf Tiedemann (ed), Walter Benjamin: Sprache und Geschichte: Philosophische Essays (Stuttgart: Philipp Reclam jun. Verlag, 1992) 141 at 150.

69

See Frederic William Maitland, Domesday Book and Beyond: Three Essays in the Early History of England (Cambridge: University Press, 1897) 224–225.

70

Bowman (n 60) 753–754.

71

For the cases that occur between the 17th and 18th centuries ad, see Mark A. Hartman, ‘Impeachment: The English Experience’, Yale University Library Gazette 49(3) (1975) 277.

72

See Peter C. Hoffer and N. E. H. Hull, ‘The First American Impeachments’, William and Mary Quarterly 35(4) (1978) 653 at 654–655.

73

Clayton Roberts, ‘The Law of Impeachment in Stuart England: A Reply to Raoul Berger’, Yale Law Journal 84(7) (1975) 1419 at 1424.

74

William R. Stacy, ‘Matter of Fact, Matter of Law, and the Attainder of the Earl of Strafford’, American Journal of Legal History 29(4) (1985) 323.

75

Bowman (n 60) 763–764.

76

ibid.

77

See Damian X. Powell, ‘Why Was Sir Francis Bacon Impeached? The Common Lawyers and the Chancery Revisited: 1621’, History 81 (1996) 511.

78

Roberts (n 73) 1438–1439.

79

See Hannis Taylor, ‘The American Law of Impeachment’, North American Review 180(581) (1905) 502 at 506–509.

80

Hoffer and Hull (n 72) 654.

81

Brown (n 61) 29–30.

82

See Raoul Berger, ‘Impeachment for High Crimes and Misdemeanors’, Southern California Law Review 44 (1971) 395 at 453–455. See also Richard A. Posner, An Affair of State: The Investigation, Impeachment, and Trial of President Clinton (Cambridge [MA]: Harvard University Press, 1999) 97ff.

83

David Y. Thomas, ‘The Law of Impeachment in the United States’, American Political Science Review 2(3) (1908) 378 at 378–379.

84

Alexander Hamilton, ‘Federalist Paper No. 65: A Further View of the Constitution of the Senate, in Relation to its Capacity, as a Court for the Trial of Impeachments’, in: George W. Carey and James McClellan (eds), The Federalist (Indianapolis: Liberty Fund, 2001) 337. Retrieved 26 Apr. 2020 https://files.libertyfund.org/files/788/0084_LFeBk.pdf.

85

It is worth mentioning the previous declaration of Francis Bacon, when he confessed to the Lords in 1621 (section 4.2).

86

See J. Hampden Dougherty, ‘Inherent Limitations upon Impeachment’, Yale Law Journal 23 (1) (1913) 60.

87

Brown (n 61) 2.

88

François Vergniolle de Chantal, ‘L’Analyse Constitutionnelle de l’Impeachment aux États-Unis’, Revue Française de Science Politique 50(1) (2000) 147 at 148.

89

See Richard B. Lillich, ‘The Chase Impeachment’, American Journal of Legal History 4(1) (1960) 49 at 71–72.

90

Keith E. Whittington, ‘Reconstructing the Federal Judiciary: The Chase Impeachment and the Constitution’, Studies in American Political Development 9(1) (1995) 55 at 81–82.

91

See Michael Les Benedict, ‘A New Look at the Impeachment of Andrew Johnson’, Political Science Quarterly 88(3) (1973) 349.

92

Michael J. Gerhardt, ‘The Lessons of Impeachment History’, George Washington Law Review 67(3) (1999) 603 at 618.

93

See Laurence Tribe and Joshua Matz, To End a Presidency: The Power of Impeachment (New York: Basic Books, 2018) 102ff.

94

Andrew Manuel Crespo, ‘Impeachment as Punishment’, Harvard Law & Policy Review 13(2) (2019) 579 at 587–588.

95

See Keith E. Whittington, ‘A Formidable Weapon of Faction? The Law and Politics of Impeachment’, Wake Forest Law Review 55(2) (2020) 381 at 392–394.

96

Cass R. Sunstein, ‘Impeaching the President’, University of Pennsylvania Law Review 147(2) (1998) 279 at 295.

97

See Jack M. Balkin, Living Originalism (Cambridge [MA]: Belknap Press of Harvard University Press, 2011) 31, 277ff.

98

See Sérgio Resende de Barros, ‘Impeachment: Peça de Museu?’, Revista Brasileira de Direito 7(1) (2011) 112 at 125–127. Retrieved 28 Dec. 2021 https://doi.org/10.18256/2238-0604/revistadedireito.v7n1p112-132.

99

José Antonio Pimenta Bueno, Direito Publico Brazileiro e Analyse da Constituição do Imperio (Rio de Janeiro: Typographia Imp. e Const. de J. Villeneuve E. C., 1857) 114.

101

See Raymundo Faoro, Os Donos do Poder: Formação do Patronato Político Brasileiro (3rd edn, São Paulo: Editora Globo, 2001) 333ff. See also Christian Edward Cyril Lynch, ‘O Discurso Político Monarquiano e a Recepção do Conceito de Poder Moderador no Brasil (1822–1824)’, Revista Dados - Revista de Ciências Sociais 48(3) (2005) 611 at 638ff.

102

Benjamin Constant, ‘De la Responsabilité des Ministres’, in: Olivier Devaux and Kurt Kloocke (eds), Oeuvres Complètes de Benjamin Constant: Principes de Politique et Autres Écrites (juin 1814 - juillet 1815), Vol. ix, No. 1 (Tübingen: Max Niemeyer Verlag, 2001) 439 at 460–462.

103

ibid 466ff.

104

cf Tobias Barreto, ‘Responsabilidade dos Ministros no Governo Parlamentar’, in: Sylvio Roméro (ed), Estudos de Direito (Rio de Janeiro: Laemmert & C. Editores, 1892) 300.

105

Constituição Política do Império do Brazil de 1824 [Brazil]. Retrieved 28 Dec. 2021 http://www.planalto.gov.br/ccivil_03/constituicao/constituicao24.htm.

106

Lei de 15 de Outubro de 1827 [Brazil]. Retrieved 28 Dec. 2021 http://www.planalto.gov.br/ccivil_03/leis/lim/lim-15-10-1827.htm.

107

See Júlio César de Oliveira Vellozo, ‘Ação e Reação: A Responsabilidade Ministerial nas Disputas entre Parlamento e Coroa no Brasil Império (1826–1828)’, in: Monica Duarte Dantas and Samuel Barbosa (eds), Constituição de Poderes, Constituição de Sujeitos: Caminhos da História do Direito no Brasil (1750–1930) (São Paulo: Instituto de Estudos Brasileiros, 2021) 62 at 73ff. Retrieved 26 Dec. 2021 https://doi.org/10.11606/9786599274411.

108

See Pinto (n 5) 39ff.

109

ibid.

110

See Mariana Pedron Macário, ‘José Clemente Pereira e o Debate Jurídico do Império: 1830–1850’ (MSc. in Law Thesis, University of São Paulo 2011) 28ff. Retrieved 19 Dec. 2021 https://teses.usp.br/teses/disponiveis/2/2139/tde-15052012-091245/pt-br.php.

111

See Pinto (n 5) 42–43.

112

Later named Americo Braziliense Project.

113

Ernesto Sena, Deodoro: Subsídios para História (Brasília: Senado Federal, 1999) 23–24.

114

See Aurelino Leal, Historia Constitucional do Brazil (Rio de Janeiro: Imprensa Nacional, 1915) 212–215.

115

Comparing previous American Constitution and Brazilian Imperial Constitution.

116

Constituição Federal de 1891 [Brazil]. Retrieved 18 Feb. 2021 http://www.planalto.gov.br/ccivil_03/Constituicao/Constituicao91.htm.

117

Magalhães Castro Project (“for crimes committed in the performance of their functions” [Art. 62]) and Werneck-Pestana Project (“for bad procedure or offense in the exercise of their functions or for common crimes” [Art 93]).

118

Americo Brasiliense Project (“i. treason; ii. corruption, bribery or concussion; iii. dissipation of public goods; iv. undue intervention in the election of any federal or state office” [Art. 38]).

119

João Barbalho, Constituição Federal Brazileira: Commentarios (Rio de Janeiro: Typographia da Companhia Lytho-Typographia, 1902) 217.

121

Lucio de Mendonça, Paginas Juridicas: Estudos, Pareceres e Decisões (Rio de Janeiro: H. Garnier, 1903) 96.

122

José Soriano de Souza, Principios Geraes de Direito Publico e Constitucional (Recife: Casa Editora - Empreza d’A Provincia, 1893) 330.

124

See H. Lowell Brown, Prosecution of the President of the United States: The Constitution, Executive Power, and the Rule of Law (Cham: Palgrave Macmillan, 2021) 191ff.

125

Barbalho (n 119) 216.

126

Rui Barbosa, ‘A Ditadura de 1893: Jornal do Brasil’, in: Obras Completas de Rui Barbosa, Vol. 20, No. 2 (Rio de Janeiro: Ministério da Educação e Saúde, 1949) 46, 50.

127

ibid.

128

Lei Federal No 27 de 7 Janeiro 1892 [Brazil]. Retrieved 18 Feb. 2021 http://www.planalto.gov.br/ccivil_03/decreto/historicos/dpl/DPL0027-1892.htm.

129

Interesting similarity between Athenian eisangelia and modern impeachment, with reference to its initiative made available to all citizens (section 3.2.2).

130

Henrique Coelho, A Constituição de 1891 e a Constituinte de 1901 (São Paulo: Typographia do Diario Official, 1903) 168.

131

In the original text, Rui Barbosa has referred to the term “Responsabilidade” (Responsibility) in Portuguese language. “Accountability” had no literal equivalency in Portuguese at his time.

132

Rui Barbosa, ‘Trabalhos Jurídicos’, in: Obras Completas de Rui Barbosa, Vol. 32, No. 2 (Rio de Janeiro: Ministério da Educação e Cultura, 1964) 47, 49.

134

José Affonso Mendonça de Azevedo, A Constituição Federal Interpretada pelo Supremo Tribunal Federal 1891–1924 (Rio de Janeiro: Typ. da Revista do Supremo Tribunal, 1925) 121–122.

135

To access the current Brazilian law on impeachment, see Lei Federal No. 1079 de 10 Abril 1950 [Brazil]. Retrieved 18 Feb. 2021 http://www.planalto.gov.br/ccivil_03/leis/l1079.htm.

136

Concerning the principle of legality stricto sensu, encompassing the premises lex scripta, lex stricta, lex certa, and lex praevia, see Walter Gropp, Strafrecht Allgemeiner Teil (2nd edn, Berlin: Springer-Verlag, 2001) 47–57. See also Francisco de Assis Toledo, Princípios Básicos de Direito Penal (5th edn, São Paulo: Saraiva, 1994) 21–29.

137

See, e.g., Constituição Federal de 1934, Article 57 [Brazil]. Retrieved 18 Feb. 2021 http://www.planalto.gov.br/ccivil_03/Constituicao/Constituicao34.htm; Constituição Federal de 1937, Article 85 [Brazil]. Retrieved 18 Feb. 2021 http://www.planalto.gov.br/ccivil_03/constituicao/constituicao37.htm; Constituição Federal de 1946, Article 89 [Brazil]. Retrieved 18 Feb. 2021 http://www.planalto.gov.br/ccivil_03/constituicao/constituicao46.htm; Constituição Federal de 1967, Article 84 [Brazil]. Retrieved 18 Feb. 2021 http://www.planalto.gov.br/ccivil_03/Constituicao/Constituicao67.htm; Emenda Constitucional No. 1 de 17 Outubro 1969, Article 82 [Brazil]. Retrieved 18 Feb. 2021 http://www.planalto.gov.br/ccivil_03/Constituicao/Emendas/Emc_anterior1988/emc01-69.htm; Constituição Federal de 1988, Article 85 [Brazil]. Retrieved 18 Feb. 2021 http://www.planalto.gov.br/ccivil_03/constituicao/constituicao.htm.

138

See Aníbal Pérez-Liñán, Presidential Impeachment and the New Political Instability in Latin America (Cambridge: cup, 2007) 149–152. See also Mario D. Serrafero, ‘El ‘Impeachment’ en América Latina: Argentina, Brasil y Venezuela’, Revista de Estudios Políticos 92 (1996) 137 at 142–147.

139

See Jonathan Turley, ‘Senate Trials and Factional Disputes: Impeachment as a Madisonian Device’, Duke Law Journal 49(1) (1999) 1 at 109ff.

140

Cicero (n 18), 111.

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