As corruption investigations into Prime Minister Benjamin Netanyahu gathered pace through 2018, a key ministerial voice in the coalition government made clear that it would be unacceptable for Netanyahu to remain in office if charges were brought against him.
While the law does not definitively require a serving prime minister to step down if put on trial, Finance Minister Moshe Kahlon was adamant that, as he phrased it in a March 15, 2018, television interview, “if a trial against the prime minister begins, he will not be able to serve.” Either Netanyahu would step down of his own volition, said Kahlon, “or everyone else will.”
Seven months later, shortly before police recommended that Netanyahu indeed stand trial for bribery in Case 4000, the most serious of the cases against him, Kahlon went further. Reiterating that a prime minister cannot stay in office when on trial, the finance minister promised in an October 9 TV appearance that he’d bring down the government if Netanyahu was indicted and didn’t step down.
Flash forward to the present, and Kahlon is currently negotiating terms for his Kulanu party to again partner Netanyahu in a coalition government following the April 9 elections. The prime minister is having a difficult time reaching deals with his various potential coalition partners; his deadline is May 28. The elephant in the coalition negotiating room is Attorney General Avichai Mandelbit’s February 28 announcement that he indeed intends to indict Netanyahu — for fraud and breach of trust in all three of the criminal cases against him, and for bribery in Case 4000.
(In this case, it is alleged that Netanyahu sweetened business conditions to the tune of hundreds of millions of dollars for telecom tycoon Shaul Elovitch, in return for Elovitch effectively enabling Netanyahu to serve as editor in chief of the Walla website, Israel’s second largest online news outlet, and shape its coverage to his liking. One small example from the draft charge sheet: On election day in 2015, when Netanyahu worked to bring out the Likud vote by claiming in a Facebook video clip that Arab voters were being bused in droves to the polling stations, the prime minister’s video entreaty was placed “prominently and for many hours” on the Walla homepage.)
Netanyahu, unsurprisingly, is adamant that he is innocent of any and all wrongdoing. As the investigations led to recommendations and finally to Mandelblit’s announcement of charges pending a hearing, Netanyahu sought to explain how it was that he, an innocent man, was nonetheless facing indictment, by gradually widening the circle of those he accuses of pursuing a political witch hunt to oust him — starting with the opposition and the media, moving on to the police, and finally including Mandelblit himself and the state prosecution hierarchy. Until recently, the prime minister at least acknowledged that Israel’s judges were fair-minded and worthy of support. Now, though, since he is closer than ever to being brought before those judges, he is targeting them too.
Israeli law already provides for the prime minister, and indeed for any Knesset member, to secure immunity from prosecution via a majority vote in the Knesset House Committee and the Knesset plenum. Among the justifications that Netanyahu could invoke for granting such immunity are that the indictment is brought in “bad faith” or that a prosecution would cause “real damage … to the representation of the electorate.” Several MKs who support Netanyahu, in his Likud party and the Union of Right-Wing Parties, are championing legislation that would ease the Knesset immunity process — but have run into opposition including from three of the prime minister’s own Likud MKs, headed by longtime Netanyahu rival Gideon Sa’ar.
Imagine the ‘override’ clause passes, the Supreme Court is no longer an address. The immunity law passes. You’ll be stuck with Bibi for another ten years,” Zohar scoffed at Rozin. “What will you do then?
Netanyahu may well be able to secure Knesset immunity against prosecution — whether under the current law or an amended version. But that would not mark the end of his legal difficulties. To stay out of the dock, he would also have to pass legislation denying the Supreme Court its current authority, granted under Israel’s quasi-constitutional Basic Laws, to overturn the Knesset immunity decision.
Since he can hardly push for or support legislation solely and overtly devoted to keeping the Supreme Court justices off his back, Netanyahu is understood to be preparing a wider legislative reform of the Supreme Court’s powers. Rather than presenting this reform as a naked bid to spare him from prosecution, it is being advanced by its supporters as a vital, long-discussed move designed to “override” the Supreme Court’s professed over-activist tendencies. The way Netanyahu put it himself in a Facebook post last week, he has always supported “a strong and independent court — but that does not mean an all-powerful court.”
Tyranny of the majority
On Monday, Likud MK and firm Netanyahu loyalist Miki Zohar, who heads the House Committee, submitted draft legislation to smooth the prime minister’s path to immunity. Chairing a debate in the committee, Zohar sniggered at objections from Meretz opponent Michal Rozin that he was in the process of destroying Israeli democracy, and happily contemplated his vision of a Supreme Court rendered “irrelevant.”
“Imagine the ‘override’ clause passes, the Supreme Court is no longer an address. The immunity law passes. You’ll be stuck with Bibi for another ten years,” Zohar scoffed at Rozin. “What will you do then?”
“It’s the end of democracy,” she retorted.
“An irrelevant Supreme Court and Bibi here for another ten years! Oh my God,” Zohar chortled.
“In short, [Turkey’s Recep Tayyip] Erdogan is here,” she ventured.
Zohar demurred: Netanyahu “is here democratically; he was voted in.”
Since the negotiations on the next coalition are taking place behind closed doors, nobody outside knows for sure what’s being discussed in the bilateral sessions between Netanyahu’s Likud team, Kahlon’s Kulanu party, and the various other potential coalition partners. At this stage, similarly, nobody knows for sure the specifics of the Supreme Court reform that Netanyahu has in mind. He has reportedly been consulting with legal experts on such matters in recent days.
The concern, though, is that, as part of his effort to evade justice, Netanyahu will advance legislation that would fundamentally remake the delicate balance between the judiciary and the legislature. My colleague Raoul Wootliff has delved into the potential ramifications of such a reform, which could see the Knesset seek to prevent the court from “overriding” Knesset legislation, Knesset decisions and government decisions it deems unconstitutional. The mooted reform, seen by some as the most significant change ever to Israeli constitutional law, could prevent the Supreme Court from serving as the vital counterweight against the danger that a “tyranny of the majority” tramples the rights of those who are not properly represented by the political system, according to one expert. Warned another: It could “sterilize large parts of the Supreme Court’s ability to maintain the rule of law, human rights and the required balance between the citizens and the power of the government.”
To give one small recent example of potential relevance: In the run-up to the April 9 elections, the Central Elections Committee — made up of representatives of Knesset parties (proportionate to their size), and headed by a Supreme Court judge — voted to ban an Arab party, Ra’am-Balad, from running for parliament. The committee’s various votes went strictly along parliamentary lines; the judge, Hanan Melcer, chose not to cast a vote himself. The majority interests thus held sway and, were the Committee to have enjoyed the last word on the matter, Ra’am-Balad would not have been able to run. However, the committee’s vote was overruled by the Supreme Court, and Ra’am-Balad wound up winning four seats on April 9.
A reform that prevented the court from intervening in that kind of decision, for instance, could see a Knesset with a robust right-of-center majority barring all Arab MKs from seeking office… with no legal resource. “Tyranny of the majority” indeed.
Silent voice of ‘the sane right’
All of which brings us belatedly back to Moshe Kahlon.
With only four seats in the new Knesset, down from 10 last time, Kahlon’s Kulanu is a much diminished force. But without Kahlon’s four seats, Netanyahu can at best cobble together a 61-strong coalition in the 120-member Knesset in the final week he still has left to build a government. Governing with so narrow a majority, when there is dissent against his immunity moves from within his own party, would be immensely complicated, at best.
A prime minister, in a country with no term limits, is trying to create a legislative bubble in which he is immune to prosecution for as long as he remains in power, for alleged criminal activity carried out while in office
Last year — before Mandelblit (an entirely credible attorney general, appointed to the job by Netanyahu himself, and manifestly not acting in “bad faith” against the prime minister) decided to indict Netanyahu pending a hearing — Kahlon declared that he would not be party to any effort by Netanyahu to remain in office if indicted. Today, Netanyahu is attempting to preempt that situation.
A prime minister, in a country with no term limits, is trying to create a legislative bubble in which he is immune to prosecution for as long as he remains in power, for alleged criminal activity carried out while in office.
He’s not battling to stay in power after indictment — the scenario Kahlon was promising to prevent last year. He’s battling to evade indictment, via legislative measures that would both exclude him from the core democratic principle that all are equal before the law, and that could shatter the delicate balance between the judiciary and the legislature in the process.
And yet Kahlon has been silent.
Gideon Sa’ar, Michal Shir and Sharren Haskel, three MKs from Netanyahu’s own Likud party, have already spoken out publicly against tailoring “personal” legislation to enable Netanyahu to secure immunity. The former Likud MK Benny Begin, son of the Likud’s legendary first prime minister Menachem and a man of peerless personal integrity, declared earlier this week that “the prime minister hiding behind the shield of immunity as a Knesset member, with or without legislative changes, is a corrupt act.” Begin added: “With this act, the prime minister intends to misuse his leadership power for personal gain, and he is dragging others down with him. The Knesset members who support the prime minister’s attempt to escape justice will be abusing their office by lending a hand to a clear act of corruption.”
Was Kahlon listening?
Among Netanyahu’s anticipated coalition partners, the pro-settlement Union of Right-Wing Parties, far from objecting to Netanyahu avoiding prosecution, is at the forefront of the charge for legislation to help him out — in an apparent quid pro quo under which Netanyahu is now talking about annexing the West Bank settlements.
The leaders of both Netanyahu’s reliable ultra-Orthodox coalition partners, Shas’s Aryeh Deri and United Torah Judaism’s Yaakov Litzman, are themselves both involved in legal entanglements; Deri has already served time. Neither will rise to the defense of the judiciary.
Netanyahu’s final likely coalition partner, Yisrael Beytenu leader Avigdor Liberman, is an unpredictable populist who quit as defense minister in protest at Netanyahu’s Gaza policies and is now set to return as defense minister with those policies unchanged; he may seek to thwart Netanyahu’s stay-out-of-court plans, or he may not — depending on his political calculations.
But Kahlon presents himself as a political Mr. Clean, leader of “the sane right” as his election campaign message proclaimed, dedicated to the interests of ordinary Israelis. It thus falls to him, in this final week as Netanyahu wraps up his coalition, to publicly declare that he will give no support to legislation, however disingenuously presented, that is designed to spare Netanyahu the democratic obligation to face up to the allegations of criminality against him.
It falls to Kahlon to pledge that he will refuse to join, and do whatever he can to bring down, a new coalition that surrenders to any such effort by Netanyahu.
It falls to Kahlon to look across at what Italy’s Silvio Berlusconi sought to do, and Turkey’s Erdogan has done, to evade prosecution and cement their hold on power by neutralizing the courts, and resolve to prevent anything similar happening here.
It falls to Kahlon, along with the likes of Sa’ar, to heed Benny Begin’s admonition, and to internalize that this is not a remotely partisan issue, where the left opposes the prime minister and the right instinctively sticks with him, but a core national imperative.
It falls to Kahlon, in these next few fateful days, to rally MKs of principle across the spectrum, and to make plain to Netanyahu, and to the public, that they will lead the defense of Israel’s democracy.