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February 21, 2018 11:08 am

In the Netanyahu Affair, Political Questions May Outweigh Criminal Process

avatar by Shany Mor

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Israeli Prime Minister Benjamin Netanyahu. Photo: Reuters / Abir Sultan / Pool / File.

The headlines surrounding Prime Minister Benjamin Netanyahu’s legal troubles started assuming even bigger and bolder fonts this past week. The prime minister finds himself threatened both by a criminal process as well as a political one. He has faced both before and has generally come out on top, if a bit worse for the wear. He and his supporters seem to believe that this time will be no different.

A criminal process would have to clear several formidable hurdles before Netanyahu might, say, be sent to prison. An investigation into wrongdoing needs to be opened. The police would gather evidence by various means, including by tempting bit players in a criminal affair to turn state’s witness. They would then have to recommend an indictment. The state prosecutor would have to consider the recommendation and then decide to file charges. And, after a trial, a judge would have to convict. This conviction would have to be upheld following any inevitable appeals. It is worth remembering, however, that in the case of Israel’s previous prime minister, Ehud Olmert, all these hurdles were eventually cleared.

A political process is much simpler. The prime minister continues to serve as long as his government has the confidence of a majority of the Knesset.  In Olmert’s case, he no longer had a majority once the police recommended charges, and he resigned. All the subsequent unpleasantness took place after he had left office, though he continued to toy with the idea of returning right up until his first conviction.

The police are pursuing investigations against Netanyahu in four different affairs, conveniently numbered for reference. Affair 1000 alleges a gifts-for-favors scheme in which the PM and his family were lavishly pampered by an Israeli-American and Australian businessman in exchange for pursuing tax policies favorable to both.

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Affair 2000 emerged from secret recordings showing a proposed deal between the PM and the publisher of a powerful tabloid newspaper in which the paper would moderate its largely critical coverage of Netanyahu in exchange for the PM’s tacit support for a bill which would curtail the circulation of a pro-Netanyahu freesheet whose success had severely hampered the publisher’s bottom line. Last week, police recommended charging the prime minister with bribery and breach of trust in both affairs.

Affair 3000 alleges large kickbacks in Israel’s deal to buy German submarines. It is not yet clear if the prime minister himself is a suspect in this affair. But the mixing of national security with the more mundane corruption of favors and gifts would be a quantum leap in the kinds of allegations that have always swirled around Israeli leaders. People might forgive shady real estate deals from politicians (on their side of the ideological divide, at least), but this affair, if it is consummated in charges and if it touches the prime minister directly, would be hard to swallow.

Affair 4000 connects a variety of sweetheart deals involving Israel’s telecom giant Bezeq, a satellite broadcaster, and a news website that was allegedly pressured into more positive coverage of the PM and his family. Six people have already been arrested in this affair, and accusations are now surfacing that not only did the Ministry of Communications approve an unusually lucrative deal for well-connected businessmen, but also that someone close to the PM dangled the possibility of a major judicial appointment in exchange for quashing a criminal investigation into the prime minister’s wife.

Interestingly, there are few common threads tying together all four affairs. All involve the nexus of relationships between small-time Israeli politics and big-time international oligarchs. All involve the kind of back-room political dealing that resembles normal politics, but which might have allegedly crossed a line into criminal activity (rather than outright premeditated criminality). All involve police attempts to turn lower-ranking officials against their erstwhile bosses in exchange for prosecutorial leniency.

And all are lent an air of credibility by Netanyahu’s reputed weakness for the trappings of the good life and unhealthy obsession with the media — as a defamer of him, his family, and the State of Israel, with no clear lines drawn between them.

According to prevailing Israeli legal practice, a minister who has been indicted must step down. It has long been assumed that this does not apply to the prime minister, as his resignation would necessarily mean the resignation of an entire government. But this has never been tested.

And it probably will not be tested in this case. An indictment of Prime Minister Netanyahu would likely push Moshe Kahlon and possibly even Naftali Bennett to break up the coalition, forcing a Netanyahu resignation before the Supreme Court could rule on whatever his legal obligation in the circumstance might be.

And therein lies the great dilemma of Israeli Attorney-General Avichai Mandelblit, himself a Netanyahu appointee. No prosecutor wants to lose a case, much less such a high-profile one. But for a case to wind its way through court only to end up with an acquittal, months or even years after it forced from power an elected government, would be worse than an embarrassment. It would border on a constitutional crisis. The pressure on Mandelblit to forego any indictment that doesn’t have a near certainty of yielding a conviction would be enormous and, however unpleasant it might sound to legal purists, probably justified.

For the Israeli political system, even larger questions loom. Has the creation of an Israeli billionaire class, by means of luring foreign oligarchs onto Israeli shores with an overly accommodating tax policy or by their creation here in Israel by means of rapid privatization of valuable public assets, really paid off? And, more importantly, do we still have the capacity to replace governments with elections, or will we grow too dependent on criminal charges (when deaths or incapacitating medical emergencies in office don’t suffice)?

Shany Mor is a former director for foreign policy on the Israeli National Security Council.

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