INTO THE FRAY: Indicting Netanyahu—The unintended consequences

By MARTIN SHERMAN

The recent release of taped telephone conversations underscores the bitter irony that the politically motivated initiative to indict Netanyahu on contrived charges will end up by undermining precisely those who launched it & were complicit in conducting it.

 There is something sick in the State Prosecutor’s Office; Shai Nitzan is not fit to be the State Prosecutor – Judge Hila Gerstel, former Commissioner for Prosecutorial Oversight.

Public trust in the police – the lowest in the West…only 22% of Israelis believe that judges don’t take bribes – Haaretz, Oct. 31, 2011.

Public approval of the police [is] at all time low – below all other public services – Haaretz, July 7, 2013.

Sed quis custodiet ipsos custodes? (But who will guard the guardians themselves?) –Juvenal, a Roman poet (circa 55 CE- circa 127 CE), Satire VI, line 347.

The Israeli law enforcement establishment is starting to unravel.

Recently released recordings

When historians look back on this dismal process, they will trace it to the endeavor to bring patently contrived indictments against Benjamin Netanyahu, in a move widely considered—by both laymen and prominent jurists—to be a flimsily disguised attempt at a legalistic coup, to unseat an incumbent prime minister after repeated failure to do so by the accepted democratic process at the ballot box.

Indeed, the recent release of taped telephone conversations between the former head of the Israel Bar Association, Effie Naveh, and the Attorney-General Avichai Mandelblit, exposed yet another layer of the increasingly problematic fabric of the nation’s legal system. In it, an agitated Mandelblit is heard referring to his former subordinate, State Prosecutor Shai Nitzan, as a “maniac” (which loosely translates from Hebrew into “asshole”), expressing anxiety that Nitzan wants to “have him by the throat.”

Allies of Netanyahu seized on the recordings as evidence that the Attorney-General had been blackmailed by the State Attorney, prosecutors and police into filing charges against Netanyahu as part of a “witch hunt” aimed at ousting the premier—but more on that a little later.

Every action produces a similar, but opposite, reaction

At this point it will suffice to refer readers to a chilling interview on the flagship Channel 2 investigative program “Uvda” (“Fact”), with Judge Hila Gerstel, former Commissioner for Prosecutorial Oversight, who decided to resign her position because of uncooperative behavior of the State Prosecutor’s Office and its staff. During the interview, Gerstel was asked (min 17.19): “Do you believe that innocent people are sitting in prison”. A clearly troubled Gerstel replied: “I believe so. Yes. I believe so.”

Of course, it was not that public confidence in the legal establishment was not rapidly eroding long before the Netanyahu indictments.

Indeed, as can been learnt from the introductory excerpts, nearly every branch of the country’s law enforcement was tainted by public distrust—whether the judiciary, the prosecution or the police.

However, it seems that in the legal world, much like in nature, every action produces a similar, but opposite, reaction.

Thus, initiating a high profile case involving criminal proceedings against a sitting PM, the intense pressures it created and the enflamed passions it kindled, shone an unrelenting spotlight on a system already perceived as gravely malfunctioning—inevitably exposing further blemishes, and enhancing the shadow cast by them.

Thus, not only were the charges themselves sharply criticized as unprecedented, unwarranted and unsubstantiated, but the manner in which they were pursued was seen as highly questionable.

A brief reminder

Readers will recall that Netanyahu was indicted on three alleged transgressions—code named Case 1000, Case 2000, and Case 4000. (Case 3000 relates to allegations of corruption in Israel’s purchase of submarines from Germany, concerning which Netanyahu has not been indicted.)

In a nutshell:

In Case 1000, Netanyahu is accused of receiving an inordinate amount of perishables (champagne and cigars) from well-heeled friends over an extended period of time—although the illicit “quo” for this allegedly egregious “quid” is far from clear—unless some assistance in attaining a US visa for someone who had contributed much to the security of Israel is deemed unconscionable malfeasance.

In Case 2000, Netanyahu and editor of the mass circulation Yediot Aharonot, Arnon Mozes, are accused of illegally conspiring to promote legislation to limit the circulation of a competing paper, Yisrael Hayom (considered to be pro-Netanyahu), in exchange for more favorable coverage from Mozes’s Yediot Aharonot (generally critical of Netanyahu). Nothing ever came of the alleged plan. The limitations were never legislated, and the favorable coverage of Netanyahu never materialized.

In Case 4000, the allegations are that Netanyahu (who then also held the position of Minister of Communications), acted to grant lucrative commercial benefits to media mogul Shaul Elovitch, in exchange for favorable coverage on the Walla! News site, one of the most popular in Israel, which Elovitch owned. In reality, with few exceptions the Walla! News coverage of Netanyahu continued to be negative and the legislation passed that benefited Elovitch was approved by all the relevant professional echelons.

Disturbing developments & a perturbing  precedent

The investigation into Netanyahu’s conduct was accompanied by a disconcerting number of disturbing developments.

For example, former State Prosecutor Shai Nitzan, who Judge Gestel deemed unfit for the position (see opening excerpt) admitted that Netanyahu could not be indicted on the basis of well-established legal practice—and to do so, new legal precedents needed to be invoked.

Thus, in an interview (May 8, 2019), Shai Nitzan, then leading the legal action against Netanyahu. was asked: “The determination that positive media coverage should be considered “bribery” is a legal precedent. Is it appropriate to set such a precedent for the first time in a case against a prime minister?”

Nitzan’s stunning, almost self-contradictory, response was: “Every legal precedent has to begin at some point. For example, in Case 4000, there was no disagreement, and everyone agreed that it was right to indict on bribery, despite the fact that it did not involve envelopes filled with cash, but influencing media coverage. So, just because it involves the prime minister, we should delay the precedent for another time? I do not think that this decision involves a widening of the charge of bribery or breach of trust.”

This leaves one to ponder over why, if the decision was in fact unprecedented, how could it possibly not involve widening the charges?

“Selective prosecution on steroids…”? 

In broad brush strokes, “selective prosecution” is a procedural defense in which a defendant argues that he/she should not be held criminally liable for an alleged transgression, as the criminal justice system discriminated against him/her by choosing to prosecute. 

This clearly seems to apply with regard to Case 2000, involving the discussions between Netanyahu and Arnon Mozes, owner of Yediot Aharonot. Indeed, not only does it seem more than a little puzzling as to why any legal action is merited because of meetings that produced no concrete result, or even concrete action towards achieving that result; but this is especially true because over 40 other MKs did in fact act to do Mozes’s bidding by voting in accordance with his wishes—while Netanyahu himself actually opposed it! Indeed, Netanyahu’s opposition to proposed legislation favoring Mozes was one of the major reasons he cited for dissolving his government and calling for elections in 2015. Perversely, no charges have been, or will be, filed against the?43 members of Knesset, who actually attempted to give Mozes what he asked for, several of whom were given positive coverage in his Yediot Aharonot.

In view of these accumulated factors, it seems difficult to dispute Netanyahu’s exasperated exclamation: “This is selective enforcement on steroids. It’s enforcement just for me.”

Illicit leaks & prosecutorial indifference

Throughout much of the investigation into Netanyahu’s alleged transgressions, a spate of leaks to the media—apparently originating from the police and/or the prosecution—accompanied its duration. Virtually without exception, the leaks were detrimental to Netanyahu and appeared to be designed to undermine his standing and tarnish his image, with the intent of diminishing public support for him.

As early as January 2019, in the letter to Attorney-General Mandelblit, the Prime Minister’s lawyers pointed out that it was not only unfair, but illegal, for law enforcement personnel to leak details of the investigation into Netanyahu’s cases to the public and the media, citing previous instances, in which similar leaks had led to criminal prosecution.

At the same time, Netanyahu himself released a statement on social media. In it, he alleged that “propaganda television channels are brain-washing [viewers] with a constant stream of false and non-contextual leaks from the criminal probes.”

Despite this, the Attorney-General and the State Prosecutor brushed off allegations that prosecutors, together with police and the media, were exploiting criminal investigations to topple politicians not to their liking. Accordingly, criticism was dismissed — in the words of Mandelblit — as part of a “campaign to cast doubt [on] my work and the prosecution’s work.”

Judicial censure of prosecutorial indifference

Indeed, when Netanyahu’s defense team complained that media leaks were inflicting “grave harm” on their client, Mandelblit insisted that although he viewed such leaks “severely,” there was “no room to check or investigate the incidents,”—without troubling to explain why.

However, so grave and glaring had prosecutorial disregard for the integrity of the investigation been that it recently spurred Supreme Court President, Justice Esther Hayut, to publicly reprimand Mandelblit for failing to investigate police/prosecution leaks to the media in cases involving Netanyahu. She warned sternly that such leaks to the media were a worrying phenomenon that erode public trust in the legal system.

Speaking at a hearing on a petition by Shaul Elovitch and his wife— both co-defendants with Netanyahu in Case 4000— seeking to probe leaks of investigative materials relating to them, she remarked disapprovingly: “These are not rare events,” asking trenchantly: “Is it not time to act? To inquire? It is grave in our eyes that nothing has been done.”

She continued reproachfully: “We express serious chagrin [over the leaks.] There is a worrying phenomenon here whose damage…[extends] to the accused… it hurts public trust and the prosecution itself. Not to mention the harm to the judicial process that should take place in court.”

In similar vein, Judge David Rozen, who succeeded Judge Gerstel, after her resignation as Commissioner for Prosecutorial Oversight, issued a public report, calling law enforcement leaks of classified testimony to police against the prime minister and others a “blow to the state.”

Extorting witnesses 

As the investigation into Netanyahu’s cases progressed, disturbing reports began to emerge concerning  police misconduct in interviewing/interrogating witnesses/suspects.

In a 2019 piece in Haaretz—hardly an ardent pro-Netanyahu outlet—investigative journalist Gidi Weitz writes: “Despite his close supervision of the pending criminal cases against Prime Minister Benjamin Netanyahu, Attorney General Avichai Mendelblit has not kept his promise to cure the major crimes unit of the Israel Police of the ills that plague it: Over-aggressiveness on the part of some detectives, investigative actions carried out without requisite court approval and violations of human rights.”

Thus, Netanyahu’ former media advisor, Nir Hefetz, held out for several weeks after his arrest, backing up Netanyahu’s behavior as legal and rejecting allegations that the Prime Minister acted illegally. It was only after police strongarm tactics—including incarcerating Hefetz in a flea-ridden jail cell for over two weeks, denying him sleep and threatening to destroy his family by exposing an alleged extramarital affair—that he agreed to turn state witness and help with the prosecution of his former boss.

In the case of Elovitch, co-defendant in Case 4000, the police reportedly tried to use his son to convince him to fire his lawyer, who opposed Elovith turning state witness as part of an effort to have him testify for the state against Netanyahu.

In response, the current head of the Israel Bar Association, Avi Himi, protested: “…all boundaries have been crossed…It is inconceivable that the police try to harm a person’s right for adequate legal representation, and try to get an attorney fired to achieve their goals.”

By their own hand… 

Allow me to conclude by reiterating the incisive assessment by Aharon Gerber, of the Kohelet Policy Forum’s legal department. “The prime minister’s opponents are willing to disregard [current legal frameworks] as they try to set legal precedent that will send him home; it’s no wonder that public confidence in the rule of law has been greatly diminished.”

He goes on to note: “The widespread support awarded to Netanyahu despite his indictment [certainly pre-COVID19] exposes an issue that will not go away when his legal battles are over.”  

According to Gerber: “Most of his supporters … have already lost their faith in the justice system…the creation of a legal precedent fuels public rage”.

He added: “Any attempt to deviate from the [existing legal] norm by creating ad-hoc legal standards will not lead to a model society, but rather an anarchic one.”

Indeed, as I have pointed out elsewhere, one thing is beyond doubt: No good result can come out of these indictments:

If Netanyahu is found guilty, roughly half the Israeli public will feel that there has been a gross miscarriage of justice—and the already tenuous public trust in Israel’s arms of law and order will be undermined even further.

On the other hand, if he is acquitted, roughly (the other) half of the Israeli public will feel that there has been a gross miscarriage of justice—and the already tenuous faith in Israel’s system of law and order will eroded even further.

It is, of course, true that the rule of law is what stands between an orderly, civilized society and savage Hobbesian anarchy. But the only thing that can sustain the rule of law is an effective functioning legal system—and the only thing that can sustain an effective functioning legal system is widespread public belief in its fairness and impartiality.

Regrettably, what we are witnessing in Israel is that those purportedly charged with the maintenance of the rule of law—whether because of political prejudice, personal animus or professional ambition—are, by their own hand, eroding the public belief that binds together the basic building blocks that comprise the very edifice of law and order in the land—the edifice with whose preservation they are charged.

Martin Sherman is the founder & executive director of the Israel Institute for Strategic Studies