By Ricardo Brito and Luciana Magalhaes
BRASILIA (Reuters) - Brazilian Supreme Court Justice Luiz Fux voted on Wednesday to acquit former President Jair Bolsonaro of an alleged coup attempt and annul his trial over jurisdiction, breaking with peers and raising the odds of an appeal of a verdict this week.
The high court still seems likely to convict Bolsonaro of plotting a coup to remain in power after he was voted out of office in 2022. Two judges on the five-judge panel already voted to convict, and the remaining two were appointed by leftist President Luiz Inacio Lula da Silva, who defeated Bolsonaro in the 2022 election.
But Fux's vote could bolster the argument of Bolsonaro's defense that the case should be decided by the high court's full bench of 11 justices, including two who were appointed by the former president.
The divergence on the court adds tension to a case that has already polarized the nation and drawn thousands of Bolsonaro supporters to the streets in protest.
A lengthy appeals process would also push proceedings closer to the 2026 presidential campaign, in which Bolsonaro says he will be a candidate. The former president was barred from running for office in a separate case over his spreading of unfounded claims about Brazil's electronic voting system.
Still, defendants typically only have the right to a type of appeal that could be helpful to Bolsonaro when rulings are not unanimous, and more than one of the five justices disagree, said Guilherme Madeira, a law professor at the University of Sao Paulo.
Fux voted on Wednesday to acquit Bolsonaro of all the crimes Bolsonaro has been charged with by the office of Brazil's Prosecutor General.
"There was surprise at the breadth of the dissent, which went beyond procedural issues and questioned the very existence of the alleged crimes," Madeira said.
The former president stands accused of taking part in an armed criminal organization, attempting to violently abolish democracy, organizing a coup, and damaging government property and protected cultural assets.
The charges are tied to Bolsonaro's alleged incitement of riots in January 2023, when thousands of his supporters stormed and ransacked the Congress, presidential palace, and Supreme Court in Brasilia.
His lawyers have maintained his innocence on all counts and argued that his trial involved several procedural mistakes.
"We did not have access to the evidence, and much less had enough time to go through it," Celso Vilardi, the former president's lawyer, told the court last week.
The justice agreed on Wednesday with several of the defense's arguments. In his vote during the trial's final deliberations, Fux said the case should have been heard by lower courts because Bolsonaro had left office.
"I vote ... that the Supreme Court has no jurisdiction to judge this case because the defendants had already lost their (political) positions," Fux said.
Once involved, he added, the full Supreme Court should have handled the trial rather than the five-judge panel.
Fux also said the defense was not given enough time to prepare their case, noting that the investigation generated around 70 terabytes of documents, which he called a "tsunami of data."
"I'm not an expert in this area, but the volume reached 70 terabytes — I couldn't believe it, because that's billions of pages. Yet it was only on April 30, 2025, that a decision was issued granting access to the media and materials seized during the investigative phase," he said.
The justice was appointed to the court by former President Dilma Rousseff, Lula's close ally and chosen successor when he ended his second term in 2010.
Fux still has to vote on other defendants before Justice Carmen Lucia begins her vote.
(Reporting by Ricardo Brito and Luciana Magalhaes in Brasilia; Writing by Manuela Andreoni and Isabel Teles; Editing by Rosalba O'Brien and Stephen Coates)
