On indictments, pretrial hearings and what Netanyahu can expect before elections
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Times of Israel Explainer'It's never a good time to indict a PM'

On indictments, pretrial hearings and what Netanyahu can expect before elections

With the PM hammering his point that voting day is too near for the AG to say he’ll file charges, legal experts say the process may not take that long and should in fact begin ASAP

Raphael Ahren

Raphael Ahren is the diplomatic correspondent at The Times of Israel.

Prime minister Benjamin Netanyahu speaks at a joint press conference with Yoav Galant, newly appointed Israeli Minister of Immigrant Absorption at the Knesset, January 9, 2019. (Noam Revkin Fenton/Flash90)
Prime minister Benjamin Netanyahu speaks at a joint press conference with Yoav Galant, newly appointed Israeli Minister of Immigrant Absorption at the Knesset, January 9, 2019. (Noam Revkin Fenton/Flash90)

When first faced with corruption allegations, Prime Minister Benjamin Netanyahu used to dismissively, even smugly, insist that “there will be nothing because there is nothing.”

Of late, his tone has dramatically changed. But the arguments he’s been advancing in recent weeks are not necessarily more pertinent than his previous mantra of total innocence, legal experts said this week.

After reports emerged that Attorney General Avichai Mandelblit will announce in February his intention to indict the prime minister, pending a hearing, Netanyahu began to claim that it would be unfair to make the announcement before Israelis cast their ballot in the April 9 general election.

Indeed, it would be akin to “stealing the elections,” he has warned repeatedly. In a video posted to his social media accounts last weekend, he compared himself to a man whose arm was cut off because he was found guilty of theft in the first instance but later acquitted on appeal. “Can someone give him back his hand? Can someone give you back the elections?” Netanyahu asked, addressing the Israeli electorate.

A still from Prime Minister Benjamin Netanyahu’s video saying that elections, like an amputated arm, cannot be returned, January 5, 2019 (Screen grab via Facebook)

Now that it appears increasingly likely that the three criminal investigations against him will not amount to nothing, the prime minister’s main argument is that Mandelblit must not open a pretrial hearing because such a process cannot possibly be concluded before Israelis head to the polls.

“They’re trying to force the attorney general to brazenly intervene in the elections by ordering me to a hearing, despite knowing that it won’t be possible to conclude the hearing process by election day,” he said in another video, alleging pressure by “left-wing protesters and the media” on the attorney general.

“It’s unconscionable to start a hearing process before elections that can’t be concluded by the elections,” he went on, lamenting that “the left” wants to “try to depose a prime minister through a drumhead court-martial and to steal the election from you, the citizens of Israel.”

How long does it take?

In similar cases in the past, pre-indictment hearings have indeed lasted several months. After the prosecution announces its intention to indict, it usually agrees with the defense team on a timeframe that allows the latter to properly prepare for the hearing. Some predict Netanyahu could try to drag that process out for a year or longer.

Several legal experts told The Times of Israel it is theoretically possible, though unlikely, to conclude the process within several weeks. But even if the hearing process were to take more than the three remaining months until Election Day, they argued, it was important to start the process at soon as possible.

“As soon as the attorney general concludes his work, he is obliged to publicize his decision,” said Suzie Navot, a professor of constitutional law at the College of Management Academic Studies in Rishon Lezion. “He cannot keep it to himself — not for a month or two or three — especially when it comes to an investigation that has been going on for two years.”

Attorney General Avichai Mandelblit at a conference in Jerusalem, February 5, 2018. (Yonatan Sindel/Flash90)

In previous high-profile criminal cases, the pre-indictment hearings took several months, but in theory the process could be completed in a matter of weeks, according to Amir Fuchs, an expert on criminal law.

“It’s up to the attorney general,” he said. “It also depends on the case itself. It’s a question of proportionality,” he added, positing that in the Netanyahu cases, “a few good weeks” should suffice.

Should the AG wait?

“I don’t agree with those who say that if it’s impossible to conclude the hearing before the election, you can’t start it. The opposite is true, in fact,” Fuchs, who heads the Defending Democratic Values Program at the Israel Democracy Institute, said.

It would be unfair to the public for Mandelblit to keep his decision a secret until after the elections, he maintained.

Fuchs allowed that it would be acceptable for Mandelblit to wait if, for purely technical reasons, he was unable to conclude his deliberations before Election Day. Nor should the attorney general publish his decision too close to April 9, he added: Netanyahu — and voters — should have a month at the very least to consider their options.

But Netanyahu’s argument that opening a hearing process that cannot be completed before the elections would undermine democracy because he wouldn’t be able to present the electorate with his side of the story, doesn’t hold water, Fuchs argued.

“Let’s say that there is a hearing, and at the end of it Mandelblit decides to indict Netanyahu. The indictment is not the endgame. Then there is the trial. But that is not the endgame, either, because a conviction can be appealed,” Fuchs said.

“The legal process doesn’t end with the hearing, and therefore it’s okay to start with it even if it cannot be concluded before the elections,” he said. “We, the public, need to know the status of the investigation before we vote.”

Netanyahu’s insistence that he needs to be given the opportunity to defend himself against the charges is somewhat unreasonable, several experts further argued. After all, nothing is stopping the prime minister from presenting his point of view to the public.

Indeed, he has done so on several occasions, including in a “dramatic announcement” Monday evening that was broadcast live by all major television and radio stations in the country in which he made the contested claim that he had been denied the opportunity to confront his accusers and asserted that this showed he was being unfairly and improperly treated by investigators.

If anything, it’s the other side — the prosecution — that has yet to formally present its case to the public. So far, the only official documents the public has seen were the police’s recommendations of indictments in cases 1000, 2000 and 4000.

The legal basis for a suspect’s right to a hearing

It bears mention that Netanyahu will not, as he has complained, be “ordered to a hearing.” Rather, a hearing on whether an indictment should be filed is a right granted to him that he is free to waive.

The right to a hearing is anchored in Israel’s Criminal Procedure Law, which states that “the suspect will be entitled to apply in writing to the prosecution authority… and to make a reasoned petition to abstain from the filing of an indictment.”

Under the law, this request can be made within 30 days of the suspect’s notification of the intention to indict him.

“According to the wording of the statute, the right to reply to the charges in writing is incontestable; the existence of a hearing is left to the discretion of the prosecution,” said Michael Partem, a lawyer and the vice chairman of the Movement for the Quality of Government.

In a 1991 directive, the attorney general’s office clarified that the prosecution determines the “nature of the hearing.”

The hearing process can take place orally or in writing, as long as it grants the suspect “a fair opportunity to present his position,” according to the directive.

“The purpose of the hearing is to enable the suspect to present his arguments and to convince that, in his view, the evidence, or the public interest, do not justify an indictment against him,” the directive reads. “In the framework of this process, the suspect has the opportunity to point out to the prosecution its mistakes, be they legal or factual.”

The directive, which was last revised in 2008, does not specify a timeframe for the hearing, but says it should focus on the main points the prosecution raised in its draft of the indictment and be “relatively short (generally one meeting).”

The hearing likely would take place at Mandelblit’s office at the Justice Ministry in Jerusalem’s Salah a-Din Street. Netanyahu himself would likely not be present.

Attorney General Avichai Mandelblit (L) and state prosecutor Shai Nitzan attend a Justice Ministry conference in Tel Aviv, December 21, 2016. (Tomer Neuberg/Flash90)

Whether the attorney general decides to invite Netanyahu to a hearing before or after the election, the prime minister’s lawyers can be expected to try to drag out the process as long as possible, legal experts said, because once Mandelblit files an indictment, the prime minister may lose the support of coalition partners whose votes he needs in order to retain power.

Some criminal suspects successfully used their hearings to argue their way out of an indictment. In 2012, Avigdor Liberman  managed to avoid obstruction of justice and money laundering charges, after a hearing process that lasted for over a year and included several meetings between his lawyers and then-attorney general Yehuda Weinstein.

While most suspects fail to convince the prosecution to drop the charges entirely, some use the hearing process to negotiate plea bargains. That happened, for instance, in the rape case against former president Moshe Katsav, though during the trial he reneged on the deal, and was eventually found guilty.

Were Netanyahu utterly confident he could persuade the AG to let him off the hook during the hearing process, definitively and rapidly, he might urge Mandelblit to make his decision as soon as possible, so he could come to election day with his name cleared; then again, he may calculate that the timeframe is already too short for him to be able to achieve such a success.

Many suspects, especially in low-profile cases, actually waive their right to a hearing, especially those who know they will eventually be indicted, since they want to keep their cards close to their chests until the trial starts.

“If I have a few aces up my sleeve, I will want to wait for the trial to play them, in order to surprise the prosecution,” said Partem, who is also a former prosecutor for the National Infrastructure Ministry.

“Netanyahu is trying to buy time, so he’s asking for the hearing to be as far in the future as possible. But he will come to the hearing with nothing [new],” he predicted.

At this point, only one thing seems certain: If and when the attorney general announces his intention to indict Netanyahu, pending a hearing, he will be attacked by the prime minister’s supporters for trying to subvert Israeli democracy.

“There is no good timing for a decision to put a prime minister on trial,” said Navot, the constitutional law professor.

“It’s never an appropriate time for that — not before the election, not during the election, not after the election, and also not in the middle of his term.”

The possible charges

Netanyahu has been investigated in three cases, and police have recommended he be charged with bribery in all three. Police recommendations have no legal value, however, and the final decision rests with Mandelblit.

Netanyahu has said he would not resign during a hearing process, which Mandelblit has confirmed he has no legal obligation to do. Were he to seek to remain in office if indicted, he would likely face legal challenges; the law is not definitive, and some legal experts say a prime minister could stay in office through a trial, a conviction and until all appeals had been exhausted.

In Case 1000, Netanyahu is suspected of receiving benefits and gifts worth about NIS 1 million ($282,000) from billionaire benefactors, including Israeli Hollywood producer Arnon Milchan, in exchange for assistance on various issues. Some reports have suggested that Mandelblit is leaning toward a charge of breach of trust in this case.

Case 2000 involves a suspected illicit quid pro quo deal between Netanyahu and Yedioth Ahronoth publisher Arnon Mozes that would have seen the prime minister hobble rival daily Israel Hayom in return for more favorable coverage from Yedioth. Some reports have suggested that Mandelblit may close the case; Channel 10, by contrast, asserted last week that state prosecutors are leaning toward a bribery charge.

In Case 4000, reportedly the most serious of the three, Netanyahu is suspected of having advanced regulatory decisions as communications minister and prime minister from 2015 to 2017 that benefited Shaul Elovitch, the controlling shareholder in Bezeq, the country’s largest telecommunications firm, in exchange for positive coverage from Elovitch’s Walla news site.

Netanyahu denies any wrongdoing, and has claimed the investigations are part of a political vendetta and witch hunt aimed at ousting him, involving the political left, the media and the police.

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