The prime minister, a self-proclaimed victim of a political witch hunt involving the opposition, the media and the police, is seeking reelection in April precisely as the attorney general weighs whether to indict him for bribery, breach of trust and/or other allegations in three corruption cases.
Immediately after Netanyahu announced Monday that he was going to the polls, discussion turned to the question of whether the prime minister was calling elections seven months before their scheduled date in part to bolster his legal position.
For one thing, it was suggested, the elections might now come before Attorney General Avichai Mandelblit reaches a conclusion on whether to indict Netanyahu, pending a hearing — a far better situation for the prime minister than seeking reelection under a darker cloud, after a recommendation to indict. For another, if, as is widely expected, Netanyahu emerges victorious again at the polls, that fresh public endorsement might make it harder for Mandelblit to put him on trial.
How accurate are such assessments? Will Mandelblit now be deterred from publishing his conclusions in the run-up to the elections because of a desire not to prejudice their outcome? Might he be deterred from indicting a newly reelected prime minister? How serious are the allegations against Netanyahu, anyway?
In search of definitive answers, or at least expert assessment, The Times of Israel interviewed Prof. Mordechai Kremnitzer, one of the leading Israeli authorities on criminal and constitutional law, a former dean of the Law Faculty at the Hebrew University, a former chair of the Israel Press Council, and a senior fellow at the Israel Democracy Institute.
Stressing the difficulty of making evaluations of the evidence against Netanyahu without firsthand knowledge of it, Kremnitzer nonetheless paints a very dark picture of the cases embroiling the prime minister. He sees no reasonable path for Mandelblit to do anything other than indict Netanyahu, including for the grave offense of bribery. And he worries about how the indictment of a highly popular prime minister might play out in Israel, though he wants to hope, he says, that the response to such an indictment among Netanyahu’s supporters will not be so angry as to threaten the rule of law here.
He wonders if Knesset members loyal to Netanyahu might seek to pass legislation — after an election victory, and before the final filing of an indictment — that would protect a serving prime minister from prosecution. He also refers The Times of Israel to a little-known clause in the law on immunity for Knesset members that already provides for immunity for an MK who has been indicted “not in good faith.” Ordinarily, the notion that MKs would vote in favor of such immunity for Netanyahu from prosecution by the state would be unthinkable, he stresses. Indeed, even now it’s highly unlikely. But given that this is precisely what Netanyahu claims — that he is the innocent victim of a political vendetta — “perhaps it is not beyond all possibility.”
What follows is a lightly edited transcript of our interview, which was conducted in Hebrew.
How will the announcement of early elections affect the work of the attorney general’s office, as Avichai Mandelbit reviews the material and weighs whether to indict the prime minister?
According to the timetable that the state prosecution announced before elections were called, they will finish their work by March. If they do get it done by March, it seems to me that they’ll have to publish their conclusions then. And if their conclusions are to indict, pending a hearing, they’ll say so.
Elections actually strengthen the imperative for them to do so — since the public has the right to know what the attorney general thinks of the material. If his conclusion is to indict pending a hearing, there’s no reason to hide that from the public.
By the way, since the forum of discussion is quite large, there is no chance at all that it wouldn’t leak anyway. But that’s a minor consideration.
If they get their work done, they’ll have to publish.
How do you think Netanyahu’s legal complications will affect the elections?
His position is better the longer he can say that it’s only the police who are recommending he be indicted. Once the attorney general says so, it’s different.
Netanyahu would then presumably stress that he hasn’t had his hearing yet. He may also attack the attorney general in the same way that he attacked the police chief.
The public will divide. Some will say it is significant. His supporters will still say there is nothing in the allegations against him. And some will say, maybe he’s corrupt, but he’s such a good prime minister that this outweighs that.
Do you think the legal battle and timetable was a factor for Netanyahu in going to the polls?
It’s hard to know. It may be that among his considerations was that spring elections might take place before the attorney general reaches his conclusions — which means his situation facing the public might be better. And it may indeed be that the attorney general doesn’t finish his work in time.
Netanyahu may also think that if the elections are held after the attorney general publishes a conclusion to indict him, and before the hearing, and he wins, it will make it harder for the decision-makers to say he should be indicted — since the public so strongly supports him even knowing he may be found to be corrupt.
This might open the door to efforts in the Knesset, for instance, to legislate the so-called French Law [preventing the prime minister from being indicted while in office], with Netanyahu’s supporters citing the will of the people not to harm the prime minister.
So it could ultimately affect the legal process?
I don’t believe the legal decision-making authorities will be influenced. But others in prominent [political] positions may think differently. They may think that public opinion can influence the professional decision-makers.
I’d like you to assess the allegations against Netanyahu — to give us a sense of how grave you think they are, whether they will lead to indictment, and so on. I’m always reminded of the Greek Island affair [a political scandal in which it seemed likely that prime minister Ariel Sharon would be indicted, but attorney general Menachem Mazuz elected not to press charges] when trying to assess how serious allegations are elected politicians. I remember I went to the press conference at which Mazuz announced he was closing the case. As a layman, I thought it stank. But he closed the case contemptuously, saying there was no chance of a conviction. So that always resonates.
With me too. That’s why it’s very hard on these matters to make an evaluation, especially when that assessment is based on media reports. I haven’t seen any of the evidence [against Netanyahu] firsthand. Having said that, I think Mazuz made a mistake.
How can you explain that? He was dismissive of the evidence. And yet he is a respected jurist, who now sits on the Supreme Court?
I have two explanations. First, when he entered the job, he was of the opinion that the focus on political corruption was mistaken. I think his vision was not to deal with the big players, but to work for a society that functions in an orderly fashion. I think he sold that vision to those who appointed him. And therefore he found it uncomfortable, at the start of his term, consciously or subconsciously, suddenly to take on the prime minister.
Second, I think he was insulted by the fact that [state prosecutor] Edna Arbel had completed the case and presented him with a counter suggestion [to charge Sharon]. I think he believed that as an act of collegiality she should have waited for him [before setting out her conclusions]. Mazuz then set up his own team [to examine the evidence against Sharon] and something very interesting happened. And it could happen in this case. His certainly didn’t tell his team, I want to close the case, but his team sensed that his inclination was negative as regards pressing charges.
You may sometimes hear in the media that this is a watertight case, that is an ironclad case. But there is always a certain risk for the state prosecution that the court will not accept its version
And so it came to pass that all of Arbel’s team favored prosecution, and all of those who worked on Mazuz’s team came to the opposite conclusion.
Forgive my naivety, but is it not black and white? Can there truly be a situation where the attitude [of an attorney-general] will determine that a case be closed, even when there is apparently a gross breach of the law?
Experienced politicians are intelligent people. They are not fools. When intelligent people do things that are illegal, they know how to do them [in such a way as to avoid prosecution]. It’s very rare [that they are caught out by acting foolishly]. When Netanyahu was recorded with Mozes, I’m sure it didn’t occur to him for a second that a tape was running. [Tape-recorded conversations between Netanyahu and Yedioth Ahronoth newspaper publisher Arnon Mozes are at the heart of Case 2000, in which Netanyahu and Mozes are alleged to have discussed a deal under which the prime minister would legislatively hamstring the free daily Yisrael Hayom, thus economically benefiting Mozes’s paper, and Yedioth would in return give Netanyahu more favorable coverage.]
It’s very rare that they would behave in such a way as to leave clear fingerprints. They know how to act, including by using people who are prepared to take a bullet for them. That was the case with Shula Zaken [a close aide to former prime minister Ehud Olmert, whose testimony against him was central to his conviction for corruption. She stood by him] until the point where Olmert’s foolish defense team managed to insult and annoy her. If, as Olmert had intended, she had continued [to support his narrative] all the way to the end, it would have been impossible to convict him on the main issues.
Experienced politicians have their methods. You may sometimes hear in the media that this is a watertight case, that is an ironclad case. But there is always a certain risk for the state prosecution that the court will not accept its version. And then there’s the question of whether you, as the prosecutor, especially when it comes to a case involving the prime minister, are prepared to take the chance that the result will be a full or even a partial acquittal.
And so with all the Netanyahu cases, do you see a path whereby the attorney general could say I’m sorry. I’m not prepared to take the risk?
Here it will be difficult, in part because there are several cases. It will be hard to convince the public that in all of these cases there is nothing [that merits prosecution]. Furthermore, the attorney general, for better or worse, has involved himself in these investigations. He’s right in there. There’s something not reasonable about overseeing an investigation into a serving prime minister, for years, when the prime minister says there’s nothing here, and ultimately saying, No, there’s nothing. That would say something very bad about this whole hierarchy.
The question would be: Why was so much invested in this “nothing”?
Furthermore, here we have a prime minister who is speaking out. He’s not silent. We know his version, we know his explanations. And therefore if you, as attorney general, allow the police to write their summation [recommending that Netanyahu be prosecuted in all three cases], a summation as harsh as the one they’ve written…
He “allows” them to draft that summation. That’s how you would put it?
Yes. It’s hard to imagine that the state prosecution did not see that document. They have accompanied this whole process. It’s not that the police investigates by itself. There’s ongoing accompaniment of the prosecution in all these cases. They have meetings. There are updates for the state prosecutor and the attorney general. I do not believe the police would have published a statement like this without the prosecution going over it. I don’t know this. I believe it.
Then there’s the fact that the district prosecutor, Liat Ben Ari, [who has reportedly recommended that Netanyahu be indicted in all three cases, with some reports indicating she recommends bribery charges in all three] is an experienced prosecutor. A prosecutor whom Mandelblit himself said is quite capable of closing a case if she doesn’t think it meets the necessary criteria. If she says what she says, then for the attorney general to then come and say, There’s nothing here, I don’t consider that to be realistic.
Can we go through the three cases? Tell me what you see as the heart of the matter in each of them.
Let’s start with Case 1000, with the gifts. In principle, you know there are two main offenses when it comes to corrupt governance. The word “corruption” does not appear in the law. That’s not a legal term.
The first serious offense is the classic crime of bribery. Giving bribes; taking bribes. The second is breach of trust. The latter is a more problematic offense, because it’s more vague. There have been criticisms written regarding this offense. I myself have written critically. The Supreme Court has sought to clarify this, but in my opinion it hasn’t managed to do so. In my opinion what’s needed is a law that would be more specific regarding this offense. The prosecution thinks it’s good that it’s vague — it’s more open. In my opinion, it’s bad for the prosecution because the judges don’t like it. So it’s a kind of boomerang. It’s no accident that one differentiates between the classic crime of bribery and the crime of breach of trust, which is a, shall we say, problematic crime.
At the same time, it’s not the case, as Olmert said, that breach of trust is merely an administrative or a disciplinary offense, and not a criminal offense. It’s a criminal offense, and there can be cases of breach of trust that are even graver than bribery offenses. But in the ranking of offenses it’s clear that bribery is far greater. It’s a crime, as opposed to a misdemeanor.
The case of the gifts highlights the distinction between bribery and breach of trust. And I need to say something about bribery that I think a lot of your readers will not know and it may be that Mazuz didn’t understand: It does not have to be proved that the taker of the bribe did something in return for the bribe that he got.
If I’m a civil servant and I’m a crook and I take money from people and give them to understand that I will do things to help them, but in practice I don’t help them… that is sufficient to constitute the offence of taking bribes. I mention this because Mazuz [when setting out his reasons for closing the Greek Island case] kept asking, What did he get in return? Where’s the benefit?
There doesn’t need to be a benefit. Of course from an evidentiary perspective, if you can prove the whole circle, if you can prove the benefit, that strengthens the case. And makes it more grave. But from the point of view of the law, it is not required.
From what I have read, Netanyahu and his wife for years received all kinds of things from two people mostly, from Arnon Milchan and from James Packer. The sums discussed have been in the hundreds of thousands of shekels. I heard a million. It doesn’t matter. A considerable sum.
It’s not clear the extent to which these can be described as gifts, because it is claimed that at least part of these gifts were given in response to demands [by the Netanyahus]. Apparently Milchan’s aide, who handled these matters, kept records, and her testimony, which is apparently good for the prosecution and bad for Netanyahu, suggests that things were asked for or demanded.
Netanyahu’s contention that these gifts were a function of friendship requires careful examination, because you don’t know — when you’re talking about prominent politicians and prominent business people, even if they meet in social circumstances — how much is true friendship and how much is a relationship where each expects to get something from the other.
If Netanyahu understood, at the time that he and/or his wife were getting those gifts, that something was expected from him in return, that’s bribery
If you’re a Knesset member and you ask the Ethics Committee, they’ll tell you you’re allowed to accept a gift of symbolic value only — a book, a bottle of wine, a bouquet of flowers — to the value of about 100 or 150 shekels. The instruction to public servants is that if you’re going to take gifts, they must be of only symbolic value. It’s hard to conclude that the scale of gifts [received by the Netanyahus], even if given over a period of several years, meets that standard.
If you’re a senior public servant and you accept gifts, and you ask for gifts, I think you understand that there’s a connection between what your job is and the gifts you’re getting. And that there’s going to be an expectation from a business person to get something in return. And that the benefit that he will get is not going to be similarly a bottle of champagne.
If Netanyahu understood, at the time that he and/or his wife were getting those gifts, that something was expected from him in return, that’s bribery. If he didn’t realize this, it’s still breach of trust. It seems to me it would be very difficult to escape breach of trust.
It’s been suggested that Netanyahu’s [recently deceased] lawyer Yaakov Weinroth had assured him that it would be okay [to take those gifts]. I don’t believe that claim will stand up. Two reasons: First of all, it’s hard for me to believe that Weinroth was fully informed on the scale and circumstances of these gifts, including that some of these gifts were supplied in response to a request for them. Secondly, even if Weinroth did know everything — and since he’s dead it might be possible to make such an assertion — I don’t think it’s likely that the court would determine that your lawyer telling you it’s ok when it’s not ok is sufficient to extricate you from legal consequences. So I don’t believe that Weinroth’s opinion will save Netanyahu. But of course it is impossible to know for certain.
How grave would a breach of trust conviction be in Case 1000?
A key question is whether the conviction carries what is called “moral turpitude.” This affects the capacity to carry on in office. Again, the issue of moral turpitude is somewhat vague. The generally accepted view is that breach of trust does carry moral turpitude. But there have been verdicts where that was not the case. There will be considerable argument over this issue. If Netanyahu is convicted only of breach of trust, I believe that he would not go to jail.
He could potentially even carry on as prime minister?
If they were to determine that the offense did not carry moral turpitude, then yes, from a legal point of view.
So much for Case 1000. Now let’s turn to Case 2000.
Okay, the Mozes case. When news of these recordings became public, it was said that the prosecution had doubts as to whether these discussions showed the offense of bribery. Maybe, it was suggested, they only showed something inappropriate. On the assumption that what we are told is in these recorded discussions is indeed in these recordings, I don’t understand this contention.
Case 2000, to me, constitutes bribery of the highest level that you can imagine
What we are told is in these discussions is that Mozes has a considerable interest in legislation that would limit Yisrael Hayom, because Yisrael Hayom endangers Yedioth economically. Yisrael Hayom operates as a freesheet, with interests other than business interests, which gives it an advantage that Yedioth cannot compete with. Therefore Mozes wants legislation [to hobble Yisrael Hayom].
Netanyahu, for his part, wants supportive coverage from Yedioth. And the discussions apparently contained elements specifying how exactly this was to be done, including, Who do you want to see working at Yedioth so that its coverage will be more comfortable for you, and so on.
That, to me, constitutes bribery of the highest level that you can imagine.
On the one hand, you have a promise to use the most important power of governance in a democracy, which is legislation, for impure reasons. And on the other hand, you have the skewing of the public’s knowledge, whereby a newspaper that had been opposed to the prime minister suddenly instead of criticizing the prime minister praises the prime minister, all because of a deal.
There are relations between journalists and politicians, instances of, you give me something and I’ll give you positive coverage. I don’t think that’s the case here. Not given the scale, and the social and public implications, and the implications for democracy. This is of a totally different scope.
I have thought from the start, when I read the descriptions of those Netanyahu-Mozes discussions, that this is a very grave case of bribery — because in a case of bribery, according to the legal definition, the illicit deal does not have to be closed. Somebody who offers such a deal, even if it is not accepted, is considered to have committed an offense.
Even if such an offer is refused?
Somebody who asks for a bribe, even if he doesn’t get one, is considered to have taken one. And someone who offers a bribe, even if he is rejected, is considered to have offered one. And bribery does not require money changing hands. There’s a ruling that anything that somebody benefits from can be considered a bribe.
You see Case 2000 as more clear cut than Case 1000?
Do you have an assessment of how it will play out?
I don’t know. If you had asked me about the Greek Island case before it reached Mazuz’s desk, I would have said, Of course it will lead to an indictment.
Incidentally, if there are people who think that if Mandelblit reaches a certain decision, the Supreme Court might intervene and overrule it, that is nonsense. The Supreme Court does not intervene in these kinds of matters. And one can understand why. Nobody can expect that Supreme Court justices will go through the thousands of pages of evidence and become more expert than the state prosecution. So if there is a petition to change the decision of the attorney general — unless he makes a clearly obvious mistake, which is hard to imagine; he and his team are professionals — it is delusional to imagine that there would be intervention.
Finally, as regards Case 4000?
This is also a case that appears to constitute bribery. [In Case 4000, Netanyahu is suspected of advancing regulatory decisions as communications minister and prime minister 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.]
On the one side, the prime minister and his wife allegedly receive supportive coverage and get to decide who works there [at Walla!] and their roles. And the assertion [by the prime minister] that the coverage wasn’t all that supportive does not seem to me to be a serious contention. Journalists are not a platoon of recruits, where you can give them all an order and they will all fall into line. There are always people who are more resistant to influence, and others who are less resistant. I imagine that even if Netanyahu had done the deal with Mozes, Yedioth would still have carried intermittent articles critical of him. Owners of newspapers cannot make absolute idiots of themselves. There are certain limits even to their influence.
On the other side is this merger of Bezeq and Yes [the satellite TV firm — a controversial merger that was approved when Netanyahu was minister of communications]. Here it is relevant to note that the police made their recommendations after hearing Netanyahu’s comments on this. What we heard from Netanyahu is, What do you want from me? Everybody agreed [to the Bezeq-Yes merger]. I merely signed off on this. Well, the police apparently do not accept this explanation.
What strengthens this is that there are two state’s witnesses, really from the closest circles: Shlomo Filber [the former director general of the Communications Ministry], who was operatively involved in this matter. We know from the police statement that he kept some of the regulatory officials out of the loop [when the merger was approved]. And Nir Hefetz, who knew the picture from inside the Prime Minister’s Office.
Now the state prosecution knows that state’s witnesses by definition are not credible. One must be very wary of them. Courts are wary of them. Plainly, one must be wary of somebody who gets something in return for his testimony. Therefore, when they reach an agreement with a state’s witness, they first need to ensure that they can confirm what he has to say from other information. Apparently they have recordings, SMSes, I don’t know what, that support these two state’s witnesses. It’s not clear to me, even if not all of this stands up, how Netanyahu can get out of this business [legally unscathed]. He himself defined himself as a friend of Elovitch. And the most simple significance of this is that you must not be involved in any way [in the business dealings] of your friend. I don’t see how he can extricate himself completely from allegations of breach of trust in this case.
We’ve seen strange things. But (not indicting) would be a strange thing. Strange to the point of inexplicable
Plainly, here, there was a deal. And there appears to be damage to the public. In many cases of bribery, the public is not harmed. Here, while this was a deal that benefited Elovitch, it’s not clear that it was a good deal for the public and for the Israeli market.
In the background to this case you have, furthermore, a prime minister, with all that he already has to deal with, taking it upon himself to be the minister of communications. And signing his coalition partners to commit in advance to agreeing to everything he wants to do in this field. When that happened, I said to myself, This, in and of itself, does not smell good. What sort of [legitimate] explanation could there be for this?
So much for my legal analysis, which I stress is based on what I have seen in the media. If the true position is different, then everything that I’ve said would not be relevant.
Your conclusion, therefore, in all three cases, on the basis of what you know, is that the attorney general will indict, including for bribery?
And the only case where it would appear there is still some argument within the [state prosecution] hierarchy is over whether the Milchan case, Case 1000, involves bribery as well as breach of trust. In my opinion, on the basis of what I understand, including Netanyahu’s efforts [to secure a US visa] for Milchan, this is a case of bribery as well.
Netanyahu is an intelligent man. He could not fail to understand that when he comes into contact with business people, even when they call it friendship, they have expectations from someone of such considerable power.
But at the same time you don’t rule out that Mandelblit can find a legal explanation for saying, No, I’m sorry, none of these cases merits an indictment?
We’ve seen such things, therefore I cannot rule it out. We’ve seen strange things. But [not indicting] would be a strange thing. Strange to the point of inexplicable.
By the way, I’ve recognized, relatively late in my career, the difficulty that prosecutors and judges have when dealing with cases such as this. To determine that the prime minister takes bribes, that he is a profoundly corrupt person, does not reflect only on him. It says something about all of us, about the state.
There’s a certain psychological difficulty in saying, This is what happened here, because it says very bad things not only about the person himself. But also about us. Ultimately, the power that he got, he got from us. Obviously, we didn’t give him a mandate to do what he did. But nonetheless, the bad smell floats over all of us. So these kinds of cases require from the authorities a great effort. Special responsibility.
What we have here, and we have not had before, is the prime minister coming and saying, This is a witch hunt against me, this is political persecution.
Obviously this causes great harm to the public perception of the police. I don’t believe that the police has been pursuing a political vendetta against the prime minister. Why would [the recently retired police chief Roni] Alsheich do that? But a lot of people do believe this.
And this latest thing that [coalition chief] David Amsalam said about people [in their millions refusing to accept it] if Netanyahu is indicted, I consider that to be a very dangerous utterance. Is this a prediction? Is this an invitation?
I’m concerned that there could be large demonstrations protesting legal moves against Netanyahu. Demonstrations outside the courts, with the claim that this is a political witch hunt. It’s not clear that it would be possible for the legal process to play out properly under such pressure from the streets.
That’s a very grave concern.
It’s not clear how this would influence the process.
Could Netanyahu stay on as prime minister if he’s indicted?
It’s not clear: The law does not clearly state that a prime minister who has been indicted must resign. The law states that only after he’s been convicted of an offense that carries moral turpitude, and the verdict is final — in other words, the appeal process has been exhausted, which can take who knows how long — only then will he be required to resign.
The Knesset has the right to not wait for the final completion of that process, but to ask him to step down after a first court decision [to convict]. But if the Knesset doesn’t do so, from the point of view of the law he can stay until the appeal process has been exhausted.
In the cases of [Shas’s minister] Aryeh Deri and [deputy minister] Rafael Pinhassi, it was determined that a minister suspected of a serious crime, which does carry moral turpitude, would have to resign once indicted. And if he were not to resign the prime minister would have to fire him. That was said as regards a minister and a deputy minister. There’s no similar determination with regard to the prime minister, and it can be argued both ways whether it applies to the prime minister.
As the attorney general has said, there would likely be a Supreme Court petition on this issue [were Netanyahu to be indicted and not step down]. I don’t know what the attorney general himself would say to the Supreme Court about this. He must be praying that he won’t have to decide about it.
Applying what you just said to Ehud Olmert, that means that while he was forced out as prime minister, politically, in 2008, legally he could have stayed on until 2016, when all of the legal petitions and process were finally exhausted and he went to jail?
Yes indeed. And by the way it was Netanyahu who said of Olmert that he could not continue as prime minister.
Quite apart from the legal aspects of this matter, there’s also the question of public norms. I think that if there is a real, sensibly based, belief that the prime minister took bribes, [he should step down]. If you or I were to catch a worker stealing money or acting in an unacceptable way, even if you didn’t catch them red-handed, you would know what to do. I think that’s the test.
If he is indicted, he could go to the Knesset and seek immunity. I don’t believe such a move would succeed, but it is a possible move
When there’s a real possibility that he’s not deserving of the public’s faith, then he should go. But of course that’s a question for the public. Unfortunately I don’t think the public today operates such norms. If politicians know that they will lose public trust because they are seen to be corrupt — I’m not talking about the legal definition, but according to common sense — that would constitute a weapon against corruption.
In the case of the public, it may well be that there is a widespread sense that Netanyahu has not acted in an honest manner, but there are other considerations that take precedence for many, including his capacity to keep this country safe in a toxic region.
Is it possible that Mandelblit may seek to cut some kind of a plea bargain with Netanyahu? To say to him, Things are looking like they’re heading in this or that direction, and you may wish to step down?
Before I get to that, I want to add something I didn’t say before. If he is indicted, he could go to the Knesset and seek immunity. I don’t believe such a move would succeed, but it is a possible move.
The Knesset can give him immunity? There’s a law on the books for that?
The Law on Knesset members’ immunity. The Knesset can give him immunity if it is persuaded that he is the victim of a vendetta — as he believes is the case.
I know there was talk of legislating that a serving prime minister could not be indicted — like the French president…
The immunity already exists. Knesset members are permitted, within 30 days of being indicted, to ask the Knesset to give them immunity from criminal prosecution for various reasons. One of the reasons is that the offense allegedly committed was committed in the fulfillment of the MK’s legislative duties. Another is if “the indictment is not issued in good faith or as a consequence of discrimination.” So there is such a possibility. Obviously, to claim that the attorney general has not acted in good faith…
Would appear to be absurd.
In the past, when the immunity laws were different, the Knesset made appalling use of MKs’ rights to immunity. There was a situation where somebody from [the late] Ezer Weizman’s [now defunct] party was one of two people indicted in a case. The civilian was put on trial, and the Knesset member was given immunity. But this was an earlier version of the law, that had wider provisions.
Why aren’t people talking about this?
It may be that they don’t know about it. And also because ordinarily, if you’re not the prime minister, with the kind of support that Netanyahu has, there is no chance of you winning such a battle as an MK. To say that the attorney general acted in bad faith is the same as firing him. But given the current Knesset, with Netanyahu, perhaps it is not beyond all possibility. I don’t think Kulanu would support it.
I don’t think Jewish Home would either.
So let’s come back to the question of a plea bargain.
As you know, in the Israeli judicial process, there are plea bargains. Most cases end in plea bargains. They offered [former president] Katsav a plea bargain he could only have dreamed of. And he, in his foolishness, having said yes, changed his mind and rejected it.
Regarding the kind of plea bargain [for Netanyahu] that has been discussed in some of the media, where the attorney general says to the prime minister, You go home and there will be no indictment — there’s never been something like that before. I find it very hard to see a reasonable decision to that effect by the attorney general, especially with cases involving bribery, and with more than one case.
The gulf it would create in terms of equality before the law — between all those who are accused of taking bribes, and the person who is supposed to set an example, the prime minister — is so vast that I don’t see how such a decision could be reached. Or defended.
That would be a decision on which the Supreme Court could intervene. It wouldn’t need to learn thousands of pages of documentation. It would merely need to ask the question: Is a deal like this acceptable?
I don’t think this kind of deal is acceptable.
So what do you consider to be a reasonable deal?
Well imagine it’s not the prime minister. The attorney general has three complex cases. He ranks them in order of the difficulty of achieving a conviction. He might go to the other side and say, I’ll give in on the most problematic of the cases. I won’t indict you for it. On condition that you admit your guilt in the other cases. Here, the state would benefit: It would give up a case in which it sees that it would have difficulty achieving a conviction, but it would secure an admission in the other cases.
How might that play out?
It’s very hard to envisage without knowing the specifics of the cases. As a matter of norms, there has to be a good explanation for why a certain case is being given up on. A reasonable explanation is, I’m giving up on this case, because I find the likelihood of conviction to be difficult, in return for an admission [of guilt] in the other cases.
It’s hard to envisage Netanyahu admitting to anything, given his repeated assertions that he is guilty of no wrongdoing. And without such an admission, there is no deal.
So what you are saying is, 1, that it is likely that there will be a prosecution. And 2, that the next question is in what kind of climate the trial would be held, and whether or not it becomes something catastrophic for Israeli democracy.
Yes. I want to hope that that vision that Amsalam raised won’t happen here. That people will respect law enforcement and the judicial hierarchies, the attorney general’s decision, and the need to have a legal process that is proper and orderly. And that these hierarchies will not subjected to the pressure of the masses. Because we would cease to be a state with the rule of law if we were to be in a situation where people were massing outside the court when a trial is underway, and claiming that there is somebody holy and pure who is being besmirched for political purposes.
That would be so terrible that I don’t believe it will happen here. After 70 years as a state, I think we’ve built a society here that understands things and is responsible. That it wants to keep the principle of the rule of law. Because ultimately people understand that in order to maintain a society, you need institutions. You need the rule of law.
Even after the assassination of Yitzhak Rabin, you’re optimistic about the public’s capacity not to be drawn…?
The assassination of Rabin took place in a certain public atmosphere. But it was the act of a single person. In every society, there are individuals who can do crazy things. For this to truly be a terrifying scenario, you’d have to have a mass of people taking part. And I hope that will not happen.
Netanyahu’s response, if he were indicted, would be central to how that plays out.
Very much so.
And what do you think he would do?
I don’t know. He would be someone facing his legal destiny.
His record to date, to my sorrow, is not good: The way he repeats that he is being persecuted. That he’s the victim of a political witch hunt. Merely repeating that could prove to be the match [that ignites trouble]. And if the people around him were to encourage it…
Nonetheless you don’t believe that will happen?
I don’t believe that the masses will protest in that way. There could be a group of people. If you followed the case of Elor Azaria [a soldier convicted of manslaughter for shooting dead a disarmed and incapacitated Palestinian assailant in Hebron], there was the phenomenon of a group of people coming to the military court [to protest on his behalf]. Now that was Azaria, not Netanyahu. But if it is protests on the scale surrounding Azaria, that’s something that the legal hierarchy can handle.
I was asked a few months ago by an American Jewish supporter of Israel: You’re going to get rid of a wonderful prime minister because of an accounting error? He was talking about the Milchan gifts.
If I thought that the crime was so marginal and of such insignificant value, I would say there’s no right to send the prime minister home over it. I’ll go further: I think that if they brought the attorney general evidence of a suspicion of a marginal wrongdoing, the equivalent of an accounting error, a reasonable attorney general would say, I’m not going to deal with this. There is equality before the law. But since we’re dealing with the prime minister, he would say, I’m not going to bother him with this trifling matter.
But there is no similarity whatsoever between the notion of a minor accounting error and the allegations that we’re talking about here. No similarity whatsoever.