Analysis: Supreme Court discuss how to face impeachment at in-person meeting

They return today and an in-person meeting is expected to determine their stand against Congress and the schedule of upcoming rulings. They are not using cellphones. Disdain for “illegal” chat-messaging and a focus on the Federal Tax share. The Health Insurance Plans accusation is key. The battle for “technicalities” begins.

Most members of the Supreme Court have decided that they will not begin to devise a common strategy to face the impeachment Congress started to discuss last week, and the future of sensitive cases they control, until they meet in person. 

Horacio Rosatti, Carlos Rosenkrantz and Juan Carlos Maqueda have reduced phone contact to a minimum throughout New Year and the January break. They believe using cellphones is not safe at a time when they are the target of the administration’s rage and in the context of the message hacking that unleashed part of the scandal

So, they have agreed that once they are face to face and alone, they will start to sketch the blueprints for the top court’s stand against the debates in the Impeachment commission and the potential subpoenas the commission could issue to get the justices and their staff to appear before the commission. On February 1 –once the January break is over– they must all return to their offices on the fourth floor of Talcahuano 550. From then on, the tête à tête meeting could take place –including, obviously, Justice Ricardo Lorenzetti, from whom they usually keep their distance. 

There will be many issues to settle, but they’re all under the premise that there is already a judicial ruling that says the alleged conversations attributed to the Telegram account of the Buenos Aires Justice and Security Minister Marcelo D’Alessandro –currently on special leave– were obtained through an illegal intelligence operation. That was put in writing by federal judge Sebastián Ramos, a decision which was surprising in its speed and harshness but also because of the author. The government’s usual reflex of linking him to so-called “lawfare” was thrown off by the judge’s low profile. Ramos was not on their radar. He became a black swan in the middle of the summer break.

The matter of using elements obtained through illegal intelligence –something that is more naturalized in politics– touched an unsuspectedly intimate nerve of the Judiciary, and the consequences are yet unclear. What psychoanalysis defines as “projection” played a role here. Instead of driving a wedge between the Supreme Court and the lower courts and congressional chambers, who might wish to distance themselves from the chats’ insinuations, it put them on the defensive, sparking a series of phone calls (almost nothing in writing) that showed that a hard line had been crossed. Whatever was said in the chats and whoever had been responsible for the operation to hack them became irrelevant. Who was using all that to their benefit became much more important. 

Proof of this was the floodgate that was opened by the public statement of the Burgundy List, which presides over the Association of Magistrates, questioning the impeachment. For those in the loop, they scathingly referred to President Alberto Fernández as  “Attorney”. That mention– not necessary and usually replaced in Argentina with the title of “Dr.”– sought to display a degree of contempt they also voice in private. This attitude is not exclusive to the sector of the judiciary that is most hostile towards Peronism. Members of the Light Blue List, more like-minded, expressed –in private, always– similar opinions about the use of this type of evidence to kickstart a political or criminal process.

The members of the Court must define not only their strategy but also whom they will enable –or not– to attend the call from the government’s deputies. But also –and on a closely related note– how they face their agenda of cases and resolve those that were pending from 2022, such as the composition of the Council of Magistrates and the Federal Tax share. The latter is the case that the ruling party, the opposition and the powerful quickly picked up: it was the trigger that brought forward the 2023 presidential race, and earned Horacio Rodríguez Larreta a pat on the back. In light of the results, the Buenos Aires mayor soon squandered the strength that the ruling could have given him when he quickly handed over D’Alessandro. Their infighting is much more powerful than the fire-at-will Kirchnerism subjected him to.

On the fourth floor, they’re getting down to business identifying the locus of the impeachment accusation. Although the argument against it is the fact that they should never be tried for the content of their rulings, this always has nuances – especially when their motivations or their consequences may have been compromised, and that is part of the plexus of reasons that can be labeled as misconduct. To analyze this case in particular, most of the cases have  final rulings issued, but the Federal Tax Share case is still in full swing. Technically, including this one may be a way of attempting to condition the underlying ruling. Pay attention to this fact, which a sector of the opposition threatens to take up to the courts. 

The “Muiña” case, which we’ve mentioned previously, offers a contradiction. Is what is on trial the fact that there was a ruling, or the reversal of that ruling’s effects in a different case after Congress unanimously resolved to change a law based on that ruling? Majorities and votes changed in both cases. 

The chats are contested, with a ruling against them. The Insurance Plans case could turn into Pandora’s Box. Yet not on the surface. Justice Maqueda is not mentioned in the case that is being tried by Judge Ariel Lijo. An audit by the Court itself covers the period between 2008 and 2021. Administratively, until 2018, in terms of documentation, everything was delegated through an agreement in the presidency of the court. That vein is what Elisa Carrió thought she found, and the reason she sent out –as she always does– to hit Lorenzetti. 

But at the same time, this is also a limitation: if the goal is, for example, to subpoena the Court’s General Manager Héctor Marchi, everyone will see that he sued several of her acolytes for the accusations against him in a case he has already won at several stages. Could that be a technical argument to avoid being forced to appear?

The list of witnesses proposed by the government includes former Justice Raúl Zaffaroni. Can he testify if he was part of the group included in any section of the Insurance Plans audit? This shows that all these technicalities now start to matter. This is the main point to be gleaned from the impeachment’s first impact and the government’s consequent show of force.

Details should not go unnoticed in the plans of both strategies. The government and its allies lashed out when the Lago Escondido case came to light, and sought to expose the judges participating in a trip to the south for which they were accused of potential bribes. They graphically distributed the photos of the judges to bring them out of anonymity in front of public opinion. The problem is that –since they did not know him– they misidentified judge Pablo Cayssials. They spread ad nauseam –in official communications and with kindred media– the picture of someone else entirely, mistakenly identifying them as Cayssials, who heads a contentious–administrative court. They never realized it was not who they said it was. Cayssials was happy.

Originaly published in / Translated by Agustín Mango


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