Talk of Netanyahu plea deal prompts renewed focus on legal strength of the charges

Attention over a possible plea deal to end former prime minister Benjamin Netanyahu’s ongoing criminal trial has sparked a renewed focus on the legal merits of the underlying corruption cases in question.

In particular, pundits and scholars alike are debating whether the trial is an overreach of the court system, especially as two of the three cases turn on the question of whether favorable media coverage – essential to a politician’s role and relevance – is something of value to be traded.

Legal opinions are divided as to whether media attention is a benefit cognizable under the existing penal law, or if the attorney general is innovating new law.

Netanyahu is on trial in three cases, dubbed Cases 1000, 2000, and 4000 by police investigators. Case 1000 concerns lucrative gifts that Netanyahu received from wealthy supporters, while Cases 2000 and 4000 both revolve around quid pro quo deals in which Netanyahu allegedly was seeking to secure more favorable media coverage from the country’s leading newspaper Yedioth Ahronoth (Case 2000) and allegedly gained effective editorial control over Israel’s second-biggest news site, Walla (Case 4000).

While all three cases carry the charge of “fraud and breach of trust,” Case 4000 is considered the most serious, as it also brings an additional charge of bribery. In the Case 4000 quid pro quo, Netanyahu is alleged to have arranged immensely lucrative benefits for fellow defendant Shaul Elovitch, the then controlling shareholder of the Bezeq telecommunications giant.

Netanyahu has always maintained his innocence, and claims that he’s the victim of a political putsch organized by political rivals, left-leaning media, the police, and state prosecutors. Both the police commissioner at the time of investigation and the attorney general, Avichai Mandelblit, were appointed by Netanyahu.

The Times of Israel spoke with criminal law experts Mordechai Kremnitzer and Avi Bell, law professors at the Hebrew University and Bar-Ilan University, respectively, for perspectives on the merits of the charges, and whether the willingness to engage in plea bargain negotiations – by Netanyahu and/or the prosecution – provides insights into the strength of the cases.

Breach of trust is legally ‘vague’

Fraud and breach of trust, the singular charge’s formal name in Israeli penal law, legally underpins each of the state prosecution’s three cases against Netanyahu. However, both Kremnitzer and Bell find issues with the charge of fraud and breach of trust, calling it a vaguely defined charge that serves as a level below bribery.

“I’m not a supporter of the breach of trust offense because it’s not defined in a clear way,” said Kremnitzer, also Senior Fellow at the Israel Democracy Institute. “Criminal offenses should be defined according to the principle of legality,” which means that a law should be clear and not retrospective. “It’s too vague.”

“Breach of trust is one of these terrible crimes that has been gotten rid of…in most of the democratic world,” Bell, a senior fellow at the Kohelet Policy Forum, said. “It’s a very vague thing that generally talks about unbecoming conduct by a public official. There’s no good definition in Israeli law. It’s more or less doing things that are potentially problematic under extreme circumstances.”

Despite being ill-defined, breach of trust has been charged in very serious cases. Kremnitzer argues that Netanyahu’s case might be just that: a potentially serious act charged under a poorly defined statute.

“As a matter of principle, breach of trust and bribery are very close sisters,” said Kremnitzer. “Although according to the law, breach of trust is less severe, there are cases in which the effects of the case of breach of trust are more severe than receiving bribes. So, it could be very severe, and I think the charges against Netanyahu belong to the upper part of the more severe part of breach of trust.” Nevertheless, “the offense is problematic.”

Does media attention merit benefit?

Mandelblit has long faced accusations from Netanyahu supporters that he is innovating with the law, by filing charges that indicate positive media coverage is a legally recognized benefit in a bargain constituting bribery.

Case 2000 revolves around Netanyahu bargaining for positive coverage in the Yedioth newspaper, in return for hobbling a rival newspaper. The deal was never implemented.

Case 4000 is also about positive media coverage, but in exchange for immense financial benefits. Elovitch, who is also charged with bribery, had controlling stakes in both Bezeq and Walla, and the charge sheet alleges that Elovitch essentially handed Netanyahu editorial control over Walla in return for Netanyahu maintaining Bezeq’s control of Israel’s internet infrastructure, delaying planned reforms — intervention that netted Bezeq billions of shekels.

“There is no precedent anywhere in the democratic world for a conviction of such a case of bribery. It’s a new theory,” said Bell. “And as we’ve seen in the course of the case, it’s a theory that’s ripe for abuse since basically every public official solicits positive media coverage.”

“Cases 2000 and 4000 revolve around the same issue, which is the question of whether there is such a thing as positive media coverage bribery,” elaborated Bell. “If there is no positive media coverage bribery, then there are no sensible criminal charges on either of those cases.”

Kremnitzer, on the other hand, says that favorable media coverage was more important to Netanyahu than money, and that it should absolutely be considered the basis of an illicit bargain.

“I was not impressed by the claims that there were fundamental flaws with the prosecution,” said Kremnitzer. “It was always clear to me that the argument that ‘bribery’ is only ‘money’ is bullshit. Anything that pleases a person and could influence him to act upon receiving it could be bribery. And it’s clear from the case now that positive coverage was more important for Netanyahu than a sack of dollars.”

“There is precedent that [benefit] is not only money; it could be anything that could motivate a person to act, anything that pleases the person, or that the person has an interest in,” added Kremnitzer. “The definition in law is very broad, and also the interpretation was always broad. It’s true that there are few former cases about media coverage, but there are even some cases of this type. So the argument or the claim that there is something entirely new or breaking out of the normal definition of bribery, to the best of my understanding, is not valid.”

Neither Bell nor Kremnitzer knew of cases in Israel where media coverage was a core factor in a bribery conviction, although both pointed to former Ashkelon mayor Itamar Shimoni. Shimoni was indicted on bribery and breach of trust for offenses that included shutting down the critical news website Ashkelon 10 in exchange for building permits, but was ultimately only convicted on other charges.

Bell argues that the perceived “new”-ness of charges based on favorable media coverage might be why Mandelblit is reportedly ready to drop the harshest charge – bribery – in 4000 and scuttle Case 2000 entirely in the possible plea bargain.

“2000 and 4000 are both clear cases of media bribery,” Bell said. “The reason that those are subject to the biggest negotiations, I think, is because those are the ones where the state prosecution is least confident that it has a victory in hand. This is a new theory. No court has ever accepted it to convict somebody, and even a friendly court, which this clearly is, may hesitate in going that far. So those are the hardest cases for the prosecution to predict victory.”

And for an explanation as to why the attorney general would ax Case 2000 and reduce but maintain a charge in Case 4000, Bell points to the facts of the latter case.

“The regulatory decisions were worth more money in 4000 than in 2000 and they happened, as opposed to 2000 where they didn’t happen.”

Kremnitzer, on the other hand, thinks that the attorney general has been lenient on Netanyahu.

“The facts that are included in the charge sheets could have been a basis for three charges of bribery, not one,” said Kremnitzer. ‘[I think] in all cases, he should have been prosecuted for taking bribes….The approach of the attorney general was from the beginning minimalistic, and Netanyahu received from him what we call in Hebrew a ‘celebrity discount’.”

Gift or graft

Regarding Case 1000, where Netanyahu received gifts of champagne, cigars, jewelry, and other personal items, Bell argues that it could have been handled differently.

“The essence of the charge is breach of trust again, and that Netanyahu made decisions while under the influence of large gifts from several individuals,” said Bell.

In particular, Netanyahu is accused of receiving an estimated NIS 700,000 worth of gifts from billionaires Arnon Milchan and James Packer, and then helping them with business and personal interests. No charges were filed against Milchan and Packer.

“It’s an odd charge because there are two obvious ways to go with gifts,” said Bell. “There’s a law of gifts. Public officials are not allowed to accept gifts, except under a narrow set of circumstances. If there’s a dispute about a gift, there’s a legal process by which the attorney general can review it and say that it’s not a proper gift and order its return. And not only order its return but order the payment of a penalty of up to three times the value of the gift.” Given the difficulty in returning already consumed cigars and champagne, the attorney general could have also ordered paying back their value.

“And that’s not what the attorney general did here, which is very odd, because if, in fact, the attorney general doesn’t think these were proper gifts, there’s a very obvious thing to do, which is to order their return and maybe order a penalty. And he’s done that in other cases with Netanyahu, he’s ordered him to return gifts,” referring to financial gifts that Netanyahu had received in the past from his cousin.

To plea or not to plea

Reports started circling Monday that Netanyahu may be willing to accept a plea deal that includes the designation of moral turpitude, which would bar him from public office for 7 years and potentially end the 72-year-old’s political career. This led many on the left to speculate this was an admission of the strength of the state’s case, and on the right to dwell on the personal toll trial would take on the former prime minister and his family.

Bell, alternatively, assigns practical calculus to the decision of whether or not to agree to a deal: weighing chances at trial against a drawn-out legal process.

“The reason for people to take a plea bargain is a function of two things: what they think the likely outcome is and what cost they’ll have to bear to get there,” said Bell.

“As long as the predictions [of the outcome of a trial] of the two sides are close enough [a deal can usually be found]….And in [Netanyahu’s] case it seems that everyone loses: as the case is going on, it is producing unflattering headlines both for prosecution and Netanyahu.”

Bell’s opinion is that the legal cases are weak, but that the state prosecution may be motivated to show a win, given the high stakes and immense resources invested in investigating and prosecuting Netanyahu.

“The cases are so weak, meritless, [but] it’s hard to see an Israeli judge not convict on something… [Otherwise] the damage to the reputation of state prosecution would be incalculable,” said Bell.

Kremnitzer argues instead that the plea deal doesn’t show weakness in the cases, but it is important for national political healing to put the divisive Netanyahu trial to bed.

According to Kremnitzer, an outcome today would be more impactful than one after a trial of several years.

“If this case is handled until the very end, it will take years of time, effort, and energy,” Kremnitzer said. “The public interest is diminishing over time, and so is the rationale for punishment. If the case is finished in 4 to 5 years, the whole perspective about it will be different than it is now.”

Kremnitzer, who has in the past called for then-prime minister Netanyahu to step down in face of what Kremnitzer argues are damning legal charges, also believes that a “confession” from the defendant is important and that a plea deal might be the only way to obtain one. Netanyahu has steadfastly maintained his innocence.

“There’s a difference between convicting someone who claims to the end that he’s innocent and convicting someone based on his own confession that he did commit criminal offenses, especially in this case,” said Kremnitzer. “Because of Netanyahu’s allegations that he’s being persecuted from political motivations, to get the confession is in the public interest.”