“It’s incredible,” Benjamin Netanyahu said upon exiting Jerusalem’s district court earlier this week, with a grin plastered across his face. Soon after, he confidently declared in a Facebook post that “Case 4000 is dead.”
Analysts agree that the shaky testimony of a key witness may have punched a serious hole in the prosecution’s case in the corruption trial against the former prime minister, but cautioned that it may not be as significant as Netanyahu proclaimed.
“I wouldn’t say it’s falling apart, but the prosecution definitely lost points,” said Walla news legal reporter Yael Freidson, who has been covering the trial. “There was a big hole punched in ‘What did Bibi do?,’ she said, using Netanyahu’s nickname. “It doesn’t look good” for the prosecution.
The evidence discredited may not be core to proving the bribery case. But what might be more decisive is how the deliberating judges weigh witness Shlomo Filber’s shaken credibility, an assessment that will take time to play out.
“Case 4000,” the most serious of the three cases the former prime minister faces, alleges that Netanyahu traded NIS 1 billion ($296 million) of regulatory benefits to telecom giant Bezeq in exchange for positive media coverage on the widely read Walla news site. At the time, both Bezeq and Walla were owned by Shaul Elovitch, who is a co-defendant in the case. Netanyahu is on trial for bribery and a lesser charge of fraud and breach of trust.
In addition to Case 4000, Netanyahu is also on trial for two additional counts of fraud and breach of trust in Case 1000, which concerns gifts he allegedly inappropriately received from billionaire benefactors, and Case 2000, in which the former prime minister allegedly negotiated to trade positive media coverage for an attempt to curtail a newspaper’s competitors.
Proving that Netanyahu engaged in bribery requires showing a give and a take. Namely, Netanyahu gave a benefit, and he did so as part of a quid pro quo to receive a benefit in return.
“What the prosecution is struggling to prove is Netanyahu’s ‘mens rea,’ his mental state, that he was aware of this,” said Yehuda Shaffer, a former senior attorney at the State Prosecutor’s Office, using the Latin legal term for “guilty mind” to indicate that Netanyahu would have to know he was committing an offense.
“Netanyahu worked in a specific way. He compartmentalized info; people only knew what they were supposed to know,” said Shaffer. “In this respect, Filber’s testimony is important. He testified that Netanyahu gave short instructions to make decisions favorable to Bezeq and Elovitch.” Filber, at the time, was the director-general of the Communications Ministry, which then-prime minister Netanyahu also presided over.
Proving the charge doesn’t require that Netanyahu arranged the bribe, just that he was aware of it at the time that the benefits were exchanged.
In the past two weeks, however, the defense succeeded in poking holes in the prosecution’s theory that Netanyahu ordered the alleged bribe. In particular, the defense scored points against two pieces of evidence used to establish that a meeting took place between Netanyahu and Filber, during which the quid pro quo instructions were supposedly given.
In the first, the defense showed that the meeting could not have taken place when the prosecution alleged it did. Using cellphone geolocation data, the prosecution showed that Filber was not physically in Netanyahu’s home or office the week of June 7, 2015, when Filber was appointed and when the indictment alleges the meeting took place.
Similarly, there was no record of the meeting in either Netanyahu’s schedule or Filber’s.
“By Israeli law, the defense just has to give a plausible alternative to what a defendant is being accused of,” said Friedson.
Netanyahu’s attorney showed that Filber could not have been there and there was no written record of the meeting, and claimed that such a meeting didn’t happen. “What they really proved was that it didn’t happen at the time,” said Freidson, adding, however, that even that is enough to deal the prosecution a blow.
Prosecutors on Sunday moved to correct the indictment after the embarrassment, saying now that the meeting happened “after defendant Netanyahu decided on Filber’s appointment,” and not after he had already been appointed to the Communications Ministry post.
Freidson said that this was tantamount to the prosecution admitting “we failed in this.”
This past week, defense attorneys tried to show that the meeting never happened and that Netanyahu never gave explicit instructions to help Bezeq. Rather, the defense’s theory was that “Filber went in to turn a new page on the relationship and improve relations,” said Freidson.
Filber, however, had “no background in telecommunications” and the prosecution claimed it was suspicious that, already, on “his first day in office, he thinks Bezeq needs to be treated better,” Shaffer contextualized. “Regulating telecom is a profession,” he said.
In specific contention was a legal pad that the prosecution submitted as evidence. On it were some notes that Filber scribbled about Bezeq, which the prosecution claims are instructions that Netanyahu gave to Filber.
Filber was a long-time Netanyahu associate who begrudgingly turned state’s witness. When Netanyahu’s attorney asked Filber if the notes could actually be his own thoughts in preparation for the meeting, rather than a summary of instructions during it, Filber seemed amenable to this interpretation.
However, despite the blows to Filber’s credibility, the analysts said ultimately all rests on whether Netanyahu knew he was getting something in return.
All that matters under Israeli law “is that when Netanyahu received the benefit from Elovtich, he was aware that it was part of a deal,” said Shaffer. Things like the alleged instructional meeting “are all additional elements, bonuses that the prosecution is trying to prove.”
Still, the prosecution’s attempts to prove the quid pro quo could ultimately be undone if the judges view Filber as an unreliable witness, which is more likely because “the reputation of the witness is damaged,” said Shaffer.
Credibility is key
The fact that Filber has given different testimony in court to accounts he offered under investigation is critical because his credibility directly connects to how the case will ultimately be decided.
Over the case presides a three-judge panel, not a jury. But, in a quirk unique to the Israeli system, the judges use the common law standard of beyond reasonable doubt to decide the case.
Shaffer, who consults on prosecutorial matters internationally, says that Israel has “one of the highest levels of proof needed in the world.”
“We took the common law terminology of ‘beyond reasonable doubt’ and we applied it to a judge-based system. It’s a phrase meant for juries,” he said. Rather than relying on lay persons’ assessments, “judges have to analyze it into a judgment that’s subject to appeal and can be scrutinized by the Supreme Court,” Shaffer said.
In practice, Shaffer estimates that “beyond reasonable doubt” to an Israeli court means “99.99%.” Meaning, ultimately, that the trial may come down to credibility.
In the past week, Filber’s credibility was further tested. But a long time, many more witnesses, and much more evidence remain to be heard before the judges will deliberate and issue their decision.
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