Seeking immunity and 61 MKs to back it, Netanyahu sets up a trial by election
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Analysis

Seeking immunity and 61 MKs to back it, Netanyahu sets up a trial by election

By laying the groundwork for parliament to save him from prosecution, the PM turns March’s national vote into more than a referendum on his rule and his legal troubles

Raoul Wootliff

Raoul Wootliff is the The Times of Israel's political correspondent.

Prime Minister Benjamin Netanyahu announces his intention to seek Knesset immunity from prosecution, in Jerusalem on January 1, 2020. (GIL COHEN-MAGEN / AFP)
Prime Minister Benjamin Netanyahu announces his intention to seek Knesset immunity from prosecution, in Jerusalem on January 1, 2020. (GIL COHEN-MAGEN / AFP)

In December 2018, over a year ago, I wrote that Prime Minister Benjamin Netanyahu’s decision to call early elections as corruption charges against him loomed could be likened to the oft-preferred form of justice in the wildly popular HBO fantasy show “Game of Thrones.”

In fictional Westeros, accused lawbreakers are given the option of a traditional trial in front of judges or, if they choose, a “trial by combat” — where they are deemed innocent if they succeed in a fight to the death against a chosen opponent. Someone willing to look death in the face and come out successful, so the show’s mythology claims, is worthy of having his sins forgiven.

In short, it does not matter if you committed a crime or not. All that matters is if you win.

After years in which Netanyahu has claimed ad nauseam that the cases against him are a frame-up, his bid for immunity marks a change of tack that shunts the question of culpability to the side. Instead, Netanyahu will seek to have the court of public opinion rule on him — a court where right and wrong don’t matter so long as you win enough votes.

Prime Minister Benjamin Netanyahu addresses Likud supporters as the results of the Israeli general elections are announced, indicating that he has won reelection, at the party headquarters in Tel Aviv, in the early hours of April 10, 2019. The Hebrew placard declares ‘There will be nothing,’ a reference to Netanyahu’s oft-repeated assertion that ‘There will be nothing, because there is nothing’ on which he can be prosecuted in the criminal investigations against him. (Noam Revkin Fenton/FLASH90)

On Wednesday night, having failed to win the two elections held in 2019, and having since been charged with bribery, fraud and breach of trust by the attorney general, Netanyahu did more than set up the coming election as a referendum on his rule and his legal troubles.

Announcing that he would ask the Knesset for immunity from prosecution in the three criminal cases against him — a move that appears likely to be delayed until after a government is formed — Netanyahu set the stage for a much more literal “trial by combat” in which success could truly save him from trial in a court of law.

With Avigdor Liberman saying immediately after the prime minister’s speech that his Yisrael Beytenu party would oppose immunity, Netanyahu’s fight for his right-wing bloc has now become a fight not only to form a majority government, but also to gain enough votes in parliament to give him the immunity he seeks. If the Likud and its right-wing, religious allies get 61 seats (out of the 120-seat Knesset), he will likely have enough Knesset support for his request for immunity; if he fails, he will face the courts instead.

Blue and White leader Benny Gantz grasped the options being put on the table, saying in his own speech after Netanyahu’s that the country now faced a choice between “the Kingdom of Netanyahu… or the State of Israel.”

By announcing that he plans to base his immunity request on the claim that a trial could cause “real damage … to the representation of the electorate,” Netanyahu has also set up a mighty battle against the very nature of the prosecution of a prime minister.

“In order to continue to lead Israel to great achievements, I intend to approach the speaker of the Knesset in accordance with clause 4C of the law, in order to fulfill my right, my duty and my mission to continue to serve you for the future of Israel,” Netanyahu said in his dramatic announcement.

Prime Minister Benjamin Netanyahu announces he’ll ask the Knesset from immunity from graft charges during a press conference at the Orient Hotel in Jerusalem on January 1, 2020. (Yonatan Sindel/Flash90)

He may have railed against “trumped-up charges” and alluded to a conspiracy against him, but the clause he used to present the grounds of his immunity request refers not to claims that the indictments were presented in bad faith, but to the notion that prosecuting a prime minister defies the will of the people.

Clause 4C of the Knesset Members Immunity Law states that an MK can request immunity if prosecution “would cause real damage to the actual functioning of the Knesset or any of its committees, or to the representation of the electorate, and failure to conduct such a proceeding — taking into account the severity of the offense, its nature or circumstances — would not cause significant harm to the public interest.”

Netanyahu, obviously not referring to damage to the Knesset or its committees, is therefore claiming that indictments against him effectively damage the public’s right to choose its elected officials.

Winning the election decisively would certainly help him bolster that claim. But if he does come out victorious in the trial by combat, his arguments may not even be needed.

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