It is terribly sad. And more still, infuriating.
How did we get to this place?
Last Thursday, November 21, Attorney General Avichai Mandelblit announced that he had made the decision to indict Prime Minister Binyamin Netanyahu for bribery, fraud and breach of trust with regard to Cases 1000, 2000, and 4000.
He did this with a heavy heart, he declared, but felt he had to: “Law enforcement is not a choice. It is my duty to the citizens of the state.”
Denying that he was pressured into indicting Netanyahu, he declared that the decision was made “only for legal considerations and based on evidence. No other consideration influenced me.”
If I believed Mandelblit, I would still be sad, but I’d be less infuriated. However, I do not believe, nor do I trust, the attorney general.
When you attend to Mandelblit’s words, it seems as if the law required him to decide as he did, and that the issues on which Netanyahu was indicted were purely legal in nature: “only for legal considerations” “law enforcement”
But the reality is not nearly as clear cut as he would have us believe. It seems that Netanyahu actually has not broken any laws.
Shocking, that this could be so, with all the furor that suggests otherwise. However, the decision to indict actually addresses what may have been ill-considered or inappropriate, not specifically illegal, behavior. At its core, it is political.
Writes Rabbi Prof. Dov Fisher, who is a law professor at two American law schools as well as a rabbi:
“Frankly, if I had been Israel’s Prime Minister, I would not have accepted cigars or champagne from friends while in office. My tastes are more modest…
“Likewise, I would not have gotten involved in discussing ways to get leftist corrupt news publishers to change their perspectives…
So I would not have done what Bibi did. But he did not violate law. He did not engage in bribery. And he surely did not perpetrate an offense that would put him in a category with the likes of Ehud Olmert and others of that ilk.” (Emphasis added)
There are a number of top lawyers who have noted that Netanyahu’s attempts to influence the media are standard practice for politicians and not criminal in nature, even if political favors were granted in return for positive coverage.
Argued prominent Israeli attorney and law professor Avi Bell (whom I recently cited):
“…prosecuting a bribery charge in these cases is a mistake. Pursuing these charges is unprecedented in the democratic world, dangerous to the fabric of Israeli democracy and ill-advised…
“There is no case we can find anywhere in the democratic world where positive [media] coverage has ever been considered a potential ‘bribe.’”
That’s pretty strong. And consider what Harvard University law professor emeritus Alan Dershowitz (also previously cited) had to say in an open letter to Mandelblit (emphasis added):
“To bring down a duly elected prime minister on the basis of an expansive and unprecedented application of a broad and expandable criminal statute endangers democracy.”
Referring to case 1000, Dershowitz made the point that that there is no applicable law that defines the line of what would constitute bribery in this case:
“The accusation is that Netanyahu took too many such gifts and made too many favors in return. But how many are too many? The law doesn’t say. No one should be charged with a crime unless he has willfully crossed a bright line and plainly violated a serious criminal statute.”
With regard to Cases 2000 and 4000, he wrote that no substantial proof can be brought forth that a law was broken.
Caroline Glick refers to the accusations against Netanyahu as “invented crimes.”
But there is more: not only are the crimes apparently invented or without legal basis, the manner in which Netanyahu has been treated in the course of his investigation exposes the bias of the prosecutors.
Glick describes this (emphasis added):
“Carefully edited and wholly distorted recordings and transcripts of police interrogations of Netanyahu, his wife, son and advisers were systematically leaked to the media. The fact that every such leak was a felony offense was of no matter.
“Netanyahu’s attorneys submitted request after request for Mandelblit to order an investigation of the criminal leaks. All were summarily and scornfully rejected.”
Additionally, I note that chief prosecutor Liat Ben-Ari was not present for all of the hearings that were held to determine whether there would be an indictment. This calls into question the sincerity of Mandelblit’s insistence that those hearings would be approached with an open mind. As it was, Ben-Ari left two days early to take her family on safari in South Africa.
Civil rights lawyer Avigdor Feldman said it was “unthinkable.” “It is a scandal. I am amazed that Mandelblit is holding the hearing.”
Lastly, there is the matter of the timing of Mandelblit announcements, which also provides us with a clue to his intent. This last announcement about the indictment, for example, came just at the beginning of the three-week period during which any MK can be chosen to put together a coalition. This undercuts the prime minister’s strength at a critical moment.
And Glick pointed out that:
“Last February, at the height of the first election campaign of the year, when Netanyahu and his right-wing coalition partners were leading in all polls by a wide margin, Mandelblit took the unprecedented — and legally dubious — step of announcing his intention to indict Netanyahu on those charges — pending a pre-indictment hearing.” (Emphasis added) That is, he announced his intention before the hearing that was supposed to help him decide whether to indict had even been held.
The point of the above is eminently clear: Prime Minister Netanyahu is not getting a fair deal.
I do not agree with everything Binyamin Netanyahu has done. He has, however, been a devoted public servant for many years, and has served Israel exceedingly well: on the financial front, with regard to calling attention to the dangers of Iran (especially when no one else was paying attention) and taking steps to limit Iranian presence to our north; with respect to greatly enhancing Israel’s international relations; and more. He deserves better than this.
All hell broke loose after Mandelblit’s announcement. Netanyahu’s enemies (inside and outside of Likud) grabbed at what they believed was an opportunity to move the prime minister to the side. Matters have begun to settle, but are still considerably in flux. Here I summarize, offering my perennial promise to return with more information in due course.
If Netanyahu is anything, he’s a fighter. It is not a sure thing that he can win this time, but he may, and he is certainly going to give it his best. After Mandelblit’s announcement, he made a lengthy statement, part of which I share here (with emphasis added):
He deeply respects Israel’s justice system, he said, but he believes the attorney general caved to pressure by State Attorney Shai Nitzan:
“…you have to be blind not to see that something bad is happening to police investigators and the prosecution. We’re seeing an attempted coup by the police with false accusations.”
The “tainted investigation process, including inventing new crimes, has reached its apex today…This is selective enforcement on steroids. It’s enforcement just for me…
“It’s time to investigate the investigators, to investigate the prosecution that approves these tainted investigations. I respect the police, I respect the prosecutors. There are hundreds of them. But we have to understand that they’re not above criticism. This isn’t just about transparency, it’s about accountability.”
The prime minister rejected calls that he step down, saying, “My sense of justice burns within me.
“…I won’t let the lie win. I will continue to lead this country with devotion. For this country, for the rule of law, for justice, we have to do one thing: to finally investigate the investigators.”
This call was not well received, although I believe it was appropriate. In some quarters Netanyahu was charged with undermining the system. But if we genuinely care about Israeli democracy, we must attend to these problems and not shy away from them.
Justice Minister Amir Ohana (Likud) has been among the most vocal of Netanyahu’s defenders. Almost a month ago already he had spoken about the need to expose the “dangerous symbiosis” that exists between Israel Police officials, the state prosecution and the media.
The prosecution, he charged, “sets its schedule according to the agenda of the political system, election dates and when the government will be formed…it is making itself a political player—a player that is not elected by the public.” (Emphasis added)
Ohana’s remarks have not been well received either. But I think he is one fine man—passionately Zionistic and unafraid to tell the truth as he sees it.
Within Likud, Netanyahu’s biggest challenger has been Gideon Saar. We’ve had broad hints of this for some time, and Saar thought he had his opportunity now: The head of Likud can only be determined via a party primary. Saar’s thought was that he might replace Netanyahu before the date for calling for new elections, and then negotiate a unity government with Gantz.
To that end, he called for a “snap primary” to be held almost immediately; this was seen as subversive by many in Likud. Netanyahu blocked his move, ultimately saying that there would be Likud primaries within six weeks. It is widely expected that he will have more than sufficient Likud support to retain his position. See details here:
There are a number of Likud MKs and ministers who aspire to reach the top in the party at some point in the not too distant future, but they are not about challenging Netanyahu now. One MK who has attracted particular attention is former Jerusalem mayor Nir Barkat, who is definitely up and coming. He criticized Saar, saying that “national responsibility obliges us to foil attempts of division from inside and out.”
The timing of matters going forward is enormously complex.
Although he has announced intention to do so, Mandelblit cannot formally file the indictments before the Knesset has considered a request for immunity from the prime minister. But we may be going into elections, thus delaying this process. (Netanyahu has not said whether he will seek immunity, but I cannot believe he will not.) This entire process may drag out until about May of next year – when the prime minister would be heard by three justices in trial.
In any event, the law allows a prime minister to retain his position after being indicted, and until such time as he might be convicted. But there are elements to the left seeking to utilize the up-coming indictment as a way to get rid of the prime minister:
The NGO The Movement for Quality Government in Israel filed a petition with the High Court asking that the prime minister be fired. It was thrown out for technical reasons, but we are likely to see more of the same.
I consider this an outrage of the highest order. The law says the prime minister can remain. To fire him now would be to deny Netanyahu the right of presumption of innocence until proven otherwise.
There are those arguing that the prime minister won’t have time to effectively fulfill his duties as prime minister because he will be so busy working on his defense.
I took the time to contact a couple of Israeli lawyers regarding this. One said that this is not a serious charge – Netanyahu has been functioning for the last half year with this over his head. The other suggested something similar, with regard to the fact that Netanyahu had a good deal of time already to prepare his defense prior to the hearing.
For a broader response, see Ruthie Blum. She describes the fantastic work the prime minister is doing at present with regard to Iran and Syria (which I hope to get to soon). And then says (emphasis added):
“In other words, contrary to his detractors’ claim that he ‘only cares about remaining at Balfour’ – the name of the street on which the Prime Minister’s Residence is located – he has shown in word and deed that he is not slacking off, even temporarily, where his determination to confront the country’s greatest existential threat is concerned. It takes some kind of master to maneuver the cockamamie Israeli political system, defend himself against politically motivated criminal charges and battle Iran all at the same time. But Netanyahu somehow has managed to do just that.”
© Arlene Kushner. This material is produced by independent journalist Arlene Kushner. Permission is granted for it to be reproduced only with proper attribution.