Legal path to depose PM is tortuous, but indictment would likely end his career

In May 2008, then-defense minister Ehud Barak issued an ultimatum to Ehud Olmert, the prime minister, who was under investigation over serious corruption allegations.

“I don’t think the prime minister can at the same time lead the government and handle his own affairs,” Barak, who led the Labor Party at the time, said at a press conference, threatening to bring down the coalition if Olmert failed to “disconnect himself from the day-to-day running of the government.”

The Likud party’s Yuval Steinitz, then an opposition MK and today a minister, urged Barak to forgo the threats and immediately move to topple the government. Benjamin Netanyahu, the leader of the opposition, argued that a prime minister who is buried “up to his neck in investigations” cannot be trusted to give his full attention to running state affairs.

Less than a decade later, the tables have turned. Netanyahu, now the prime minister, is a suspect in a two-pronged criminal investigation. The first deals with claims that he and his family received hundreds of thousands of shekels’ worth of luxury gifts from businessmen, including Israeli Hollywood film producer Arnon Milchan. The second case pertains to recordings of conversations between Netanyahu and Israeli media mogul Arnon Mozes in which the pair allegedly negotiated an illicit quid pro quo.

Netanyahu has denied any wrongdoing and repeatedly stressed that nothing will come of the criminal investigations. But the public pressure increases every day, as additional details are leaked and allies and family members (including his wife and son) shuffle into the offices of the Lahav 433 corruption unit in Lod to give testimony.

Despite the rising pressure, the law does not require him to resign — even if he is indicted and subsequently convicted in the first instance. The prime minister’s term would be terminated automatically only after the High Court of Justice ruled finally that a crime involving moral turpitude was committed.

The potential process for legal procedures to force Netanyahu out of office play out over three stages. First, the police must investigate to determine whether there is enough evidence to commence legal proceedings. That stage is currently underway.

The second stage would see an indictment against the prime minister filed and presided over by three judges in the Jerusalem District Court.

“Israeli law is silent about this stage,” said Ofer Kenig, a researcher at the Israel Democracy Institute, explaining that a prime minister is allowed to continue in his position while defending himself in court. “However,” he added, “a High Court of Justice ruling from the mid-1990s stated that if a minister is indicted, then the prime minister must fire him.”

Kenig was referring to the 1993 corruption case of Shas politician Arye Deri (who was then, and is again now, interior minister). Then-prime minister Yitzhak Rabin did not want to oust Deri even after an indictment was filed against him, but after an appeal to the court he had no choice.

“The legal norm, thus, is that the prime minister has to fire any minister who is being indicted. One could therefore argue that the same principle applies to prime ministers as well,” Kenig said. “If Netanyahu is indicted, we will probably see appeals to the High Court followed by a ruling based on this precedent from the 1990s.”

But if the court were to reject such appeals, the third stage on the path to force Netanyahu out of office would be a guilty verdict. If he were to be convicted of a crime involving moral turpitude, “the Knesset may remove him from office, pursuant to a decision of a majority of the Knesset members,” according to paragraph 18(a) of Israel’s Basic Law: The Government. The crimes of which Netanyahu is suspected are so severe that, if proven, they would be most likely considered “moral turpitude,” Kenig assessed.

The relevant phrase here, however, is “the Knesset may remove him…” In other words, even if the Jerusalem District Court convicts him of a severe crime, Netanyahu could save himself by mustering 61 MKs to support him.

It is reasonable to assume that any politician would appeal a guilty verdict. Only if the High Court of Justice were to uphold the judgement would his fate be sealed, since “the prime minister will cease to serve in office and the government shall be deemed to have resigned,” according to paragraph 18 (d).

That legal process could take years. It currently seems, indeed, that public pressure is more likely to force Netanyahu out of office than legal procedures.

According to a poll published Tuesday, 54 percent of Israelis do not believe Netanyahu’s protestations of innocence, as opposed to 28% who said they do believe him. At the same time, respondents were divided on whether he should resign, with 44% saying yes and 43% saying no.

According to a different survey, published by the Knesset Channel, 40% of Israelis want Finance Minister Kahlon, the head of the Kulanu party and a former member of Netanyahu’s Likud, to pressure the prime minister to step down, similar to Barak’s ultimatum to Olmert.

Members of the coalition parties are currently fully backing the prime minister. Even the opposition is not yet forcefully calling for Netanyahu to be impeached — not yet. But if the investigation goes on for too long, this will likely change.

“In this very early stage of inquiries, we should not expect the prime minister to quit or even to suspend himself. It’s way too early,” Kenig said. “The inquiry is not yet casting a doubt on his ability to properly govern and fulfill his duty.”

However, if the probe continues for two or three more weeks, the Israeli public should start wondering whether the many hours that Netanyahu spends preparing for and sitting in hearings do not prevent him from carrying out his duties as the leader of the nation, he added.

Olmert was under investigation and held on to his seat for over half a year, and it “cast a real shadow on his ability to properly run the country,” Kenig said. Israelis deserve a leader who devotes all of his attention to governing and who will not be distracted by legal battles, he argued.

“Being Israeli prime minister is one of busiest and most complicated jobs on earth. Netanyahu should be fully invested in being prime minister. But if he is distracted by ongoing inquiries that’ll consume a lot of time and energy, and we should expect him to at least take a political time out.”

There’s no need for Netanyahu to quit or for new elections to be called, Kenig explained. Rather, he could take a leave of absence, letting someone else run the government while he fights the legal charges.

“Should the prime minister be temporarily unable to discharge his duties, his place will be filled by the acting prime minister,” states paragraph 16(b) of Basic Law: The Government. If the prime minister is still incapacitated after 100 days, he will be “deemed permanently unable to exercise his office.”

This law is mostly intended for situations in which a prime minister is unable to function for health reasons, such as when Ariel Sharon suffered a stroke in early January 2006 and Olmert became acting prime minister. But there’s no reason why Netanyahu cannot declare himself “unable to discharge his duties,” given his focus on his legal battles.

If Netanyahu failed to shed his legal difficulties in 100 days, the ball would land in President Reuven Rivlin’s court. Just as he did when the government was first formed, he would once again consult with the leaders of the various Knesset factions and task one of them with trying to form a coalition.

The Movement for Quality Government in Israel, one of the country’s premier corruption watchdogs, has been relatively restrained so far in its response to the Netanyahu probes. Initially, it called for a thorough and speedy investigation. This week, it called on Netanyahu to lay down his post as communications minister.

“We try to prevent the issue becoming over-politicized,” said Michael Partem, the movement’s vice chairman. “We think the police should be allowed to do its work silently.”

But the public has the right to know what’s going on and therefore the investigation should be concluded as quickly as possible, he added. If the attorney general decides not to file charges against Netanyahu, the movement would petition the court to demand a thorough explanation.

If an indictment is filed against the prime minister, he should “step aside, even if only temporarily,” Partem said. “I would imagine that he’ll be reluctant, but in that case, a number of petitioners are waiting to ask the High Court to issue a ruling [forcing him to suspend himself], even though the law doesn’t require it.”

An indictment would not yet require the prime minister to step down, but based on legal precedent and the anticipated wave of petitions to the court, it will most likely end his illustrious career.

Times of Israel staff contributed to this report.