There was no firm indication in the opening session late Tuesday as to which way the seven-judge panel will lean.
If the court votes to scrap the election result, Temer — who took over only last year when Rousseff was impeached — would himself risk losing his office, forcing Brazil’s congress to pick an interim president.
Temer, who faces a separate, potentially devastating corruption probe, says the election court will absolve him.
“The president is calm. He is waiting for the court’s decision,” Temer’s lawyer Gustavo Guedes said as he entered the court Wednesday.
Even if found guilty, the center-right president would be able to appeal. A judge on the TSE could also decide to adjourn the court hearings, with the whole process potentially then dragging on for weeks.
Analysts say that the initial reading of the court’s deliberations makes acquittal more likely for Temer.
“Apparently the most probable thing is that the president will escape, although that doesn’t mean it’s going to happen. In Brazil it’s the most likely outcome,” said Albert Almeida, at the Analysis Institute.
The Eurasia Group issued a note saying that “there are growing signs President Michel Temer could well enjoy a majority on the court.”
While Benjamin is widely predicted to vote against Temer, the court’s president Gilmar Mendes has made arguments indicating he will go the other way.
Until recently, few analysts thought the TSE would convict Temer, allowing him instead to complete his mandate through 2018. Brazil is still shaken by the trauma of Rousseff’s impeachment and Temer has argued repeatedly that he is needed to restore stability and see through austerity reforms meant to rebuild Brazil’s sickly economy.
But Temer’s political standing has been dramatically weakened by the revelation last month of secretly recorded audio in which he is allegedly heard approving payment of hush money from a meatpacking tycoon to a top politician jailed for corruption.
The opening of a probe into those hush money allegations fueled hopes among Temer’s opponents that the TSE will seize the opportunity to bring him down — even if the election case is unrelated.
Benjamin told the court Tuesday that Brazil’s courts “judge facts as facts and not based on political expediency.”
But Temer’s lawyer has accused Prosecutor General Rodrigo Janot — who heads the corruption probe — of leaning on the TSE “to find the president guilty.”
If Temer is convicted by the electoral court, he can appeal, but he’d still face the ongoing parallel corruption probe and his grip on power may become untenable.
Another possibility is that the court will adjourn the case. That, argues Eurasia Group, would also hurt Temer because he would not be able to put the election issue behind him, leaving him ever more vulnerable to attacks on the corruption case.
It “may well determine Temer’s fate. For if the court punts deliberations for weeks or even months, the president would be much more vulnerable to ongoing investigations by the prosecutor general’s office,” Eurasia Group said.
Despite his troubles, Temer has so far retained a solid center-right coalition in Congress. That is partly because the legislature has got no clear candidate to step into Temer’s shoes as the interim leader for the next year and a half.
But that coalition could crack at any time.
The key partner to Temer’s PMDB party, the PSDB, has indicated that it is waiting to hear the results at the election court before deciding whether to withdraw support or stick by the president.
Without the PSDB, Temer’s PMDB party would be highly unlikely to find the necessary support to enact controversial pension reform that is at the center of Temer’s austerity plans.