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Op-edOrdinary plea bargain considerations do not apply here

Why Israel’s prosecutors would be wise to forgo a plea bargain with Netanyahu

A deal would resolve the case of the state versus the former PM. But what about the fateful matter of the former PM versus the law enforcement institutions of the state?

David Horovitz

David Horovitz is the founding editor of The Times of Israel. He is the author of "Still Life with Bombers" (2004) and "A Little Too Close to God" (2000), and co-author of "Shalom Friend: The Life and Legacy of Yitzhak Rabin" (1996). He previously edited The Jerusalem Post (2004-2011) and The Jerusalem Report (1998-2004).

Prime Minister Benjamin Netanyahu delivers a statement before entering a courtroom at the Jerusalem District Court on May 24, 2020, for the start of his corruption trial. Alongside him from left are Likud MKs and ministers including Amir Ohana, Miri Regev, Nir Barkat, Israel Katz, Tzachi Hanegbi and Yoav Gallant. (Yonathan Sindel/Flash90)
Prime Minister Benjamin Netanyahu delivers a statement before entering a courtroom at the Jerusalem District Court on May 24, 2020, for the start of his corruption trial. Alongside him from left are Likud MKs and ministers including Amir Ohana, Miri Regev, Nir Barkat, Israel Katz, Tzachi Hanegbi and Yoav Gallant. (Yonathan Sindel/Flash90)

On May 24, 2020, with a group of about a dozen leading Likud politicians arrayed in solidarity around him, Prime Minister Benjamin Netanyahu unleashed a furious denunciation of the state prosecution system that, he charged, was framing him, trampling the law and subverting Israeli democracy.

“Elements in the police and state prosecution banded together with left-wing journalists… to fabricate baseless cases against me,” Netanyahu alleged. “The goal is to oust a strong right-wing prime minister and to banish the right-wing camp from the leadership of the country for many years… This is an attempted political coup, against the will of the people.”

These claims, and much more of what he said that Sunday morning, he had said many times before, including in a series of live broadcasts into the nation’s living rooms. What was different that day was the location: at the entrance to the Jerusalem District Court where his trial in three corruption cases was getting underway.

Now, 20 months later, the attorney general who oversaw the investigation into Netanyahu, and made the momentous decision to indict a serving prime minister, is widely reported to be blowing hot and cold on the idea of finalizing a plea bargain with the defendant — the defendant who has sought to transform the case of the state versus Benjamin Netanyahu into the case of Benjamin Netanyahu versus the law enforcement institutions of the state.

What has changed, centrally, in these past 20 months is that Netanyahu is no longer in office, ousted in large part because of those charges brought against him, graft allegations that cost him crucial support. In Netanyahu’s narrative, the coup succeeded.

Several reasons have been advanced by ostensible insiders and other experts as to why Avichai Mandelblit would consider cutting a deal in this highest-of-all-stakes prosecution. None of them seems satisfactory.

It has been suggested that the attorney general wants to wrap up the case before he steps down, after six years, at the end of the month. That’s patently absurd. He would have known when he filed the indictment that he would no longer be around at the end of a trial involving hundreds of witnesses, and that he would not need to be around; his successor(s) would continue to oversee the team directly prosecuting the case.

Prime Minister Benjamin Netanyahu, left, speaks with then-cabinet secretary Avichai Mandelblit, later Israel’s attorney general, during a cabinet meeting in Jerusalem, September 21, 2014. (AP/Menahem Kahana, Pool/File)

It has been posited, including energetically by Netanyahu loyalists, that Mandelblit is not confident that he can secure a conviction. If that were so, he should never have filed the charges. It’s a little too late for cold feet now.

And it has been suggested, by the former president of the Supreme Court, Aharon Barak, no less, that a resolution now, with an admission of guilt by the former prime minister — albeit to the markedly lesser crimes in the proposed deal — would benefit Israeli society at large. Barak, who has confirmed that he is encouraging Mandelblit to work for a plea bargain, said this week that a deal “would take the sting out of the attacks on the court system” and thus expedite a process of national healing.

With all due respect to Barak, such a notion implausibly assumes that Israel’s most oft-elected and longest-serving prime minister — and still the public’s preferred choice for the job — would, once a deal were done, slink away into chastened oblivion.

Far more likely is that Netanyahu would, first, assert that the case against him was collapsing, as proven by Mandelblit’s readiness to drop the most serious charge, of bribery. Second, he would explain that he was nonetheless compelled to plead guilty to the reduced charges because, given the pernicious forces stacked against him and against the political bloc he heads, his innocence was an insufficient defense. Third, he would seek a presidential pardon, or at least a shortened ban from public office. National healing? Not so much.

The arguments against Mandelblit concluding a plea bargain with Netanyahu, by contrast, appear potent and compelling.

The attorney general chose to take on a serving prime minister because he was adamant that there was a serious and solid case for Netanyahu to answer — so serious and solid as to obligate him to intervene in the normal functioning of the democratic process. He determined that Israeli law allowed Netanyahu to remain in office while the investigation continued, and even after the indictment was filed and the trial got underway. But he knew that the probe, the charges and the trial would remake Israeli politics.

So, issuing the indictment was, to resort to understatement, not a step to be taken lightly. Equally, it is not a process to lightly abort before the evidence is presented and weighed.

Moreover, the defendant raised the stakes — asserting that it is not really he who is on trial, but rather the police and the prosecution, backed by the leftist media and his political opponents, who have all conspired to oust him, and not only him — to oust his right-wing government and future right-wing governments for years.

The trial of a prime minister for corruption could never take place in a political vacuum, as some kind of sterile legal operation, and Netanyahu’s political-coup narrative has only heightened the national sensitivities surrounding it. Cutting a secret deal, hammered out by lawyers behind closed doors, without the disinfectant of sunlight that a trial provides, would allow that narrative to fester.

The “moral turpitude” designation is meant to be a logical consequence of a conviction for a serious crime, not a separate weapon in the prosecutorial armory

Indeed, Mandelblit’s widely reported insistence that the plea bargain include a clause in which Netanyahu admits to “moral turpitude,” meaning he would be barred from public office for seven years, reinforces the Netanyahu narrative. The “moral turpitude” designation is meant to be a logical consequence of a conviction for a serious crime, not a separate weapon in the prosecutorial armory. Reportedly demanding it as part of the deal, Mandelblit would essentially be doing precisely what Netanyahu has alleged he has been doing — going beyond his legal remit, and directly seeking to ensure the extended ouster of a right-wing prime minister.

Intimating her support for a plea bargain earlier this week, former Supreme Court justice Edna Arbel noted that such deals are common in the Israeli system, and, when the sides can come to an agreement, important in saving time and resources, and boosting the efficiency of the courts.

But the case of the state versus Benjamin Netanyahu is no ordinary case, he is no ordinary defendant, and many of the ordinary considerations when a plea bargain is weighed have no place here.

Supporters of Prime Minister Benjamin Netanyahu demonstrate outside the Jerusalem District Court before the start of his trial on graft charges, May 24, 2020. (Menahem Kahana/AFP)

Israel, so bitterly divided over Netanyahu, his virtues and alleged crimes, with its governance still overshadowed and hamstrung by this saga, requires justice to be done and to be seen to be done. For the sake of all directly involved, and for the watching nation, the evidence needs to be heard, the judges need to rule, and the public needs to be empowered and enabled to make sense of it all.

Israelis protest against Prime Minister Benjamin Netanyahu outside his official residence in Jerusalem on July 30, 2020. (Yonatan Sindel/Flash90)

The verdict, whenever it comes and whichever way it goes, will not be a healing moment. Far from it. But it does offer a potential foundation for eventual healing. A judicial process in full flow, terminated by a secretive deal that the defendant will argue was imposed upon him by his politicized prosecuting adversaries, does not.

A plea bargain would resolve the important, narrow legal case of the state versus Netanyahu. It would not settle the nationally fateful matter of Netanyahu versus the law enforcement institutions of the state.

** An earlier version of this Editor’s Note was sent out Wednesday in ToI’s weekly update email to members of the Times of Israel Community. To receive these Editor’s Notes as they’re released, join the ToI Community here.

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