ExplainerLegal maneuvers that may extricate him, challenge democracy

How Netanyahu’s far-right, Haredi coalition could help him beat corruption charges

Expected government of Likud leader, who is currently on trial, may grant him lifeline from conviction; critics say proposed changes would allow lawmakers to abuse their authority

Likud chairman MK Benjamin Netanyahu arrives for coalition talks in Jerusalem on November 6, 2022, after his bloc won a majority in the November 1 elections. (Yonatan Sindel/Flash90)
Likud chairman MK Benjamin Netanyahu arrives for coalition talks in Jerusalem on November 6, 2022, after his bloc won a majority in the November 1 elections. (Yonatan Sindel/Flash90)

AP— Former Israeli prime minister Benjamin Netanyahu is set to return to office, from where he could try to make his yearslong legal troubles disappear through new legislation advanced by his far-right and ultra-Orthodox allies. Critics say such a legal crusade is an assault on Israel’s democracy.

Netanyahu, 73, who is on trial for corruption, will likely be buoyed by a loyal and comfortable governing majority that could grant him a lifeline from conviction.

Defenders of the justice system say the proposed changes would allow legislators to abuse their authority and disrupt the tenuous balance of powers that keeps them in check.

“It brings us to a situation where our entire democracy boils down to elections, but once you are elected you can do whatever you want,” said Amir Fuchs, senior researcher at Jerusalem’s Israel Democracy Institute think tank. “It is not a normal situation in any democracy.”

Israel’s right wing has for years sought to change the justice system, portraying it as an interventionist and left-leaning roadblock to its legislative agenda. The makeup of the expected coalition now clears a path for such changes.

Netanyahu is on trial for fraud, breach of trust and accepting bribes in three scandals involving wealthy associates and powerful media moguls. He denies wrongdoing and has portrayed himself as a victim of a witch hunt by law enforcement and the justice system.

Benjamin Netanyahu arrives for a court hearing in his trial at the District Court in Jerusalem on May 31, 2022. (Yonatan Sindel/Flash90)

Netanyahu’s political rivals say such allegations of purportedly politicized prosecutors and judges are part of a campaign to erode the public’s faith in the legal system and ultimately weaken it.

Netanyahu has claimed that proposed legal changes would not impact the outcome of his trial. While on trial, he is bound by a conflict of interest arrangement limiting his dealings with the justice system, although it is unclear if that will be enforced.

Here’s a look at the legal maneuvers that could help Netanyahu:

The Override Clause

The most contentious change would target Israel’s Supreme Court in what critics say is a direct blow to Israel’s democracy.

Netanyahu’s partners say the Supreme Court steps in far too often to throw out right-leaning laws. They say voters choose their lawmakers to create legislation and having the Supreme Court challenge those laws is an affront to the people’s choice.

Israel has no constitution, relying instead on a set of “basic laws” that enshrine rights and freedoms. The courts are tasked with verifying that legislation measures up to those laws. The Supreme Court is seen as the final recourse for minorities and other groups challenging legislation they perceive as discriminatory.

Supreme Court Chief of Justice Ester Hayut and Supreme court justices arrive for a court hearing at the Supreme Court in Jerusalem, on October 6, 2022. (Yonatan Sindel/Flash90)

The override clause, expected to be among the coalition’s first steps, would allow the government to treat some decisions by the Supreme Court as nonbinding.

Under the proposal, still being negotiated, the coalition could override rulings with any majority, giving the governing bloc overwhelming power to disturb Israel’s system of checks and balances.

Yaniv Roznai, a law professor at Reichman University near Tel Aviv, said that once the override clause is passed, the government could approve other changes in the law that could clear Netanyahu.

The ‘French Law’

Netanyahu’s allies plan to craft a law that would postpone the prosecution of a sitting prime minister for alleged crimes until he leaves office. It’s dubbed the “French law” because in France, sitting presidents are immune from prosecution.

Sitting Israeli prime ministers can be prosecuted. But unlike in France, Israeli leaders have no term limits, meaning the shield of immunity could possibly last for years. Netanyahu is Israel’s longest-serving leader, having ruled for 15 years and he has no plans to retire.

Under the plan, a prime minister could be prosecuted for some crimes, but it excludes corruption charges. Fuchs, the researcher, said that makes the law appear tailor-made for Netanyahu.

Israelis carry a banner showing incoming prime minister Benjamin Netanyahu during a protest against the Israel Jewish nation bill, in Tel Aviv, Israel, July 30, 2018. (AP Photo/Oded Balilty, File)

Changing the penal code

Netanyahu’s allies have pledged to remove from the penal code the very charge Netanyahu is accused of in three cases: fraud and breach of trust.

They say the crime is poorly defined, giving the court too much discretion when deciding on a conviction. They say it places lawmakers overly at risk for unjustified prosecution.

Critics say erasing the charge would remove a safeguard against corruption. They argue that targeting the very charge Netanyahu is accused of could erode the rule of law, opening the door to further changes to the legal code to rescue other lawmakers.

Yoav Sapir, a former Israeli chief public defender, said canceling an offense has a retroactive effect. That could lead to charges in all three of Netanyahu’s cases being dropped and having two out of three cases thrown out entirely.

Reconfiguring the attorney general

Today, Israel’s attorney general consults with the government on the legal viability of legislation and represents it in court, while also being tasked with protecting the public interest from any harm posed by government authorities.

The attorney general is nominated by the government and must be cleared by a professional committee made up of former justice officials and others.

Netanyahu’s allies want to split the post of attorney general into three separate jobs, while making at least two of the positions political appointments.

Attorney General Gali Baharav-Miara attends a conference in Tel Aviv, July 5, 2022 (Avshalom Sassoni/Flash90)

The current attorney general, Gali Baharav-Miara, was nominated by the outgoing government and she appears to have backed her predecessor’s decision to indict Netanyahu.

And while firing her is complicated and has bad optics, splitting the position would keep her in her post until the end of her term in 2028 while shifting some of her responsibilities to a political appointee who could decide to halt the trial.

Outsized leverage

Netanyahu’s legal woes give outsized leverage to his prospective coalition partners, who have been driving a hard bargain in tougher-than-expected talks now underway to form a government.

His allies are asking for influential portfolios, such as defense, finance and public security.

They also want to grant legal immunity to soldiers operating against Palestinians, allow gender segregation in certain public spaces and increase government stipends for tens of thousands of ultra-Orthodox Jews who instead of working study Jewish texts.

Ultra-Orthodox and far-right parties could hold the key to Netanyahu’s legal salvation, granting them great power in deciding the next government’s agenda and shaping Israel’s future.

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