As a serving PM in the dock, Netanyahu takes Israel into Berlusconi territory
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Analysis

As a serving PM in the dock, Netanyahu takes Israel into Berlusconi territory

From Sunday, the only audience that matters for a brilliantly persuasive premier is 3 District Court judges… unless he musters the power, as ex-Italian PM did, to change the law

David Horovitz

David Horovitz is the founding editor of The Times of Israel. He is the author of "Still Life with Bombers" (2004) and "A Little Too Close to God" (2000), and co-author of "Shalom Friend: The Life and Legacy of Yitzhak Rabin" (1996). He previously edited The Jerusalem Post (2004-2011) and The Jerusalem Report (1998-2004).

File: Benjamin Netanyahu, right, meets with then-Italian Prime Minister Silvio Berlusconi in Rome on June 13, 2011. (Amos Ben Gershom / GPO/FLASH90)
File: Benjamin Netanyahu, right, meets with then-Italian Prime Minister Silvio Berlusconi in Rome on June 13, 2011. (Amos Ben Gershom / GPO/FLASH90)

When Likud leader Benjamin Netanyahu won the Israeli election on May 29, 1996, defeating incumbent Shimon Peres, he became, at age 46, the youngest politician ever to lead the country.

On July 20, last year, Netanyahu outlasted Israel’s first prime minister, David Ben-Gurion, to become cumulatively the longest-serving premier in Israeli history. He has since surpassed 5,000 days in office — accumulated during his first term from 1996-9, and in his record-breaking, 11-year-plus consecutive term since returning to office in March 2009.

On Sunday, May 24, Netanyahu is setting another, unhappier precedent — becoming the first serving prime minister in Israeli history to appear in court on criminal charges — fraud and breach of trust in Cases 1000, 2000 and 4000, with the additional charge of bribery in Case 4000.

Netanyahu is by no means the first prominent Israeli leader to run into serious trouble with the law. Moshe Katsav, a former minister and Israel’s eighth state president, was jailed for seven years for rape and sexual harassment in 2010, but he had resigned the presidency in 2007, almost two years before he was indicted.

Prime Minister Benjamin Netanyahu (left) with Ehud Olmert in 2009 (photo credit: Yossi Zamir/Flash90)
Prime Minister Benjamin Netanyahu (left) with Ehud Olmert in 2009 (photo credit: Yossi Zamir/Flash90)

Ehud Olmert, the only Israeli prime minister with a criminal conviction, had announced he was stepping down from the office while under investigation in summer 2008, and did so months later — having been urged to take this course by numerous other senior politicians, notably including Netanyahu — before being indicted in the summer of 2009, and finally beginning a jail term in 2016 after exhausting all appeals against his conviction.

While Olmert was prosecuted for crimes committed before he became prime minister, furthermore, the allegations against Netanyahu relate to his conduct as prime minister.

Not only is Netanyahu the first Israeli prime minister to go on criminal trial while still in office, however, but Sunday’s court appearance is also almost without precedent internationally, certainly in democracies.

Fighting on against criminal charges, while in office as prime minister in a democracy, is rare indeed

Wikipedia maintains a vast register of heads of government who were indicted, tried and imprisoned after leaving office in all manner of circumstances. Only days ago, the prime minister of Lesotho, announced that he was resigning amid allegations that he was involved in the murder of his former wife. The disputed president of Venezuela, Nicolás Maduro, was indicted in March by the US Department of Justice for drug trafficking and narco-terrorism. Argentina’s Cristina Fernández de Kirchner is among those to have been indicted after leaving the top job, and subsequently made a political comeback.

But fighting on against criminal charges, while in office as prime minister in a democracy, is rare indeed.

In presidential democracies, three American presidents have been impeached, and all three acquitted, in what is essentially a political process. Richard Nixon resigned in the course of an impeachment process. Serving French presidents enjoy broad immunity from prosecution. In Brazil and South Korea, presidents Dilma Roussef and Park Geun-hye, respectively — were suspended and removed from office in political, rather than criminal, processes.

As for parliamentary democracies, they largely provide for the investigation and for the prosecution of a serving prime minister, but even the first of these has rarely happened. Tony Blair in 2006 became the first serving British prime minister to be questioned over criminal allegations, and neither he nor any other serving British premier has ever been indicted.

Sunday’s court appearance puts Netanyahu in the company of Italy’s Silvio Berlusconi, who has battled through multiple criminal cases, both while serving as prime minister, intermittently, in several terms from 1994-2011, and between and subsequent to his prime ministerial periods. As Dr. Dana Blander, of the Israel Democracy Institute, has noted, Berlusconi battled with some success while serving as prime minister to change Italian law and attain immunity from prosecution when charged with offenses including tax evasion, seducing a minor, and obstructing justice — even managing to get ongoing trials suspended in 2008.

Italian Prime Minister Silvio Berlusconi waves from his car as he leaves a trial hearing in Milan on Monday, Sept. 19, 2011 (AP Photo/Luca Bruno)

Time and again, however, these changes to the law were struck down as unconstitutional, and proceedings ultimately reinstated. An eventual conviction, and a jail term imposed in 2013 when he was no longer prime minister, saw Berlusconi barred for six years from public office, but the prison sentence was commuted to community service, and, the ban having expired, Berlusconi is now back in politics as a member of the European Parliament.

Position of strength

Netanyahu has already achieved a crucial victory by virtue of arriving in the dock as the serving prime minister; as a mere MK or minister, he would have been obligated to resign.

Instead, he faces the judges credibly insisting that the Israeli public has already made its judgment in his case — that he has been cleared in the court of public opinion — with the will of the people confirmed just days ago, on May 17, when he was again sworn-in as prime minister, with the support of a large Knesset majority. Thoroughly familiar with the allegations against him, and thoroughly familiar with the pros and cons of his leadership of the country, enough of the electorate, and ultimately more than enough of the Knesset, has chosen to stick with him.

This will be a period of dangerous frictions for Israel, with not just the country’s prime minister on trial, but also its judicial system, and the capacity of a society bitterly at odds over the legitimacy of his prosecution to keep its divisions in check

When prime minister Olmert was under investigation, opposition leader Netanyahu famously declared, “A prime minister neck deep in investigations has no moral or public mandate to make fateful decisions for the State of Israel.” Last November, Blue and White leader Benny Gantz posted a clip of Netanyahu making that assertion, and used it to reinforce his own demand that Netanyahu step down. But today, even arch political rival Gantz is allied at Netanyahu’s side, as his defense minister and “alternate prime minister.”

Blue and White chairman Benny Gantz (L) and Prime Minister Benjamin Netanyahu in the Knesset plenum on May 17, 2020, as their new coalition was sworn in. (Knesset)

Defying endless political eulogies, and having come close to defeat in three election campaigns, Netanyahu has proved indefatigable and indomitable. The former trait will doubtless serve him well as the trial proceeds; time will tell if the second will also prevail.

The trial of Netanyahu is widely seen as likely to drag on for two or three years at the very least. If the events of the last few days are anything to go by, this will be a period of dangerous frictions for Israel, with not just the country’s prime minister on trial, but also its judicial system, and the capacity of a society deeply at odds over the legitimacy of his prosecution to keep its divisions in check.

Attorney General Avichai Mandelblit speaks at the 17th annual Jerusalem Conference of the ‘Besheva’ group, on February 24, 2020. (Olivier Fitoussi/Flash90)

Netanyahu has spent more than two years not merely bitterly contesting the allegations, but furiously asserting that the case against him is a frame-up, an attempted political coup by the opposition, media, cops and state prosecutors. Now Attorney General Avichai Mandelblit, who was appointed by and indicted Netanyahu, is himself under unprecedented scrutiny, with one newly appointed cabinet minister branding him “an alleged criminal”; the Likud’s coalition chairman Miki Zohar has said a Netanyahu conviction would be “the greatest injustice in Israeli history”; and the prime minister’s son is invoking the Dreyfus Affair. Meanwhile, the security services have deemed it necessary to bolster security around the Jerusalem District Court judges who are hearing the case.

Judges Moshe Bar-Am, Rebecca Friedman-Feldman and Oded Shaham, L-R. (Justice Ministry)

As of Sunday, however, it is the decisions of only three people — Jerusalem District Court judges Rebecca Friedman-Feldman, Moshe Bar-Am and Oded Shaham — that will determine Netanyahu’s path ahead, his political future, his reputation, his place in history. Unless or until, that is, he is able to muster the political numbers, and thus the legislative clout, that Berlusconi proved at least temporarily capable of marshaling.

Netanyahu, protesting his innocence and fulminating against his accusers, has kept enough of the electorate with him to remain prime minister despite all his legal travails. But, to date, he has not been able to draw enough political support in order to enact legislation to remake the balance of authority between the political echelon and the judiciary, and, among other oft-discussed amendments, render a prime minister immune from prosecution while in office.

And thus, the fate of Benjamin Netanyahu, and with it much about the direction of Israel in the near future, rests with the judges of Jerusalem.

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