Why the choice between Netanyahu and the rule of law is no choice at all

Why the choice between Netanyahu and the rule of law is no choice at all

Is Israel going to drum out a skilled PM for a few piffling infractions? Well, it might, but they may not be piffling, and the framers of our laws ensured it won’t be done lightly

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 leaves the Muni World conference in Tel Aviv on February 14, 2018. (AFP Photo/Jack Guez)
Prime Minister Benjamin Netanyahu leaves the Muni World conference in Tel Aviv on February 14, 2018. (AFP Photo/Jack Guez)

Toward the end of a panel discussion in which I participated on Tuesday evening, organized by American Jewish leaders on a mission to Jerusalem, a member of the audience asked us whether we realized how lacking in self-awareness Israel currently seems to many of its supporters overseas, as it apparently moves to hound out of office a highly effective prime minister for alleged bribery offenses involving piffling sums.

The $300,000 or so in total that Netanyahu and wife Sara is alleged to have received in cigars, champagne and other goodies from billionaire friends Arnon Milchan and James Packer, the questioner scoffed at our session of the annual gathering in Jerusalem of the Conference of Presidents of Major American Jewish Organizations, is so insignificant it could be regarded as a rounding-off number.

Over such a sum, he asked in outraged bafflement, Israel was going to lose a leader uniquely capable of keeping the country safe and thriving?

Police Commissioner Roni Alsheich attends an Interior Affairs Committee meeting at the Knesset in Jerusalem, on February 20, 2018. (Yonatan Sindel/Flash90)

There was plainly a degree of support for this view in the room; the questioner received a smattering of applause. One of my fellow panelists, in similar vein, had earlier suggested that police chief Roni Alsheich ought not to be pursuing the various corruption investigations into Netanyahu, because the prime minister needed to focus his full attention on the security challenges facing Israel; any criminal probes should wait until his time in office was completed.

With Iran now encamped directly on our northern border, and upping the ante just days ago by sending one of its own drones into the country in an unprecedented direct challenge; with Hezbollah strengthening, the Mahmoud Abbas era nearing its end, Putin ascendant in the neighborhood and an unpredictable if supportive US president, there are indeed threats and instabilities in most every direction.

Prime Minister Benjamin Netanyahu attends an inauguration ceremony for a new emergency room at the Barzilai Hospital in the Israeli coastal city of Ashkelon on February 20, 2018. (AFP PHOTO / JACK GUEZ)

Looking back over recent years in which Netanyahu-led Israel has maintained relative stability and strong economic growth while much of the Middle East collapsed around it, and watching the dexterity with which Netanyahu puts Israel’s case to key world leaders, it is easy to understand why many people watching from overseas who care for this country would be horrified at the notion of an Israel helmed by anybody else. Indeed, polls taken in the last few days — even as police recommended that Netanyahu be prosecuted for fraud, breach of trust and bribery in two cases, and with new criminal allegations continuing to surface — underline how widely supported Netanyahu remains among Israelis too. As of this writing, I have yet to see a survey indicating anyone but Netanyahu as our preferred choice of prime minister.

Communications Ministry Director-General Shlomo Filber at a Knesset committee meeting on July 24, 2016. (Yonatan Sindel/Flash90)

Even today, with Israel’s opposition leader Avi Gabbay having proclaimed that “the era of Netanyahu is over,” and one of the prime minister’s closest aides, Communications Ministry director Shlomo Filber, turning state witness against him, there is no definitive saying when or even whether Netanyahu will fall. It might be credibly asserted that Filber could turn out to be Netanyahu’s Shula Zaken — the longtime aide turned state witness, privy to all the boss’s darkest secrets, whose testimony was central to the conviction and eventual incarceration of prime minister Ehud Olmert. But Netanyahu, it should be stressed, retains the presumption of innocence, has not been charged with any offense, and is unlikely to be charged for many, many months at the earliest.

Ehud Olmert and Shula Zaken in September 2011 (photo credit: Uri Lenz/Flash90)
Ehud Olmert (left) and Shula Zaken, September 2011 (photo credit: Uri Lenz/Flash90)

Nonetheless, the notion that this or any other prime minister, this or any other Israeli, however effective and ostensibly uniquely masterful, should be given special legal dispensation — should be, that is, above the law — does not bear close scrutiny.

An argument can be made that a national leader constrained by term limits should be protected from investigation and prosecution in most circumstances. France, for instance, provides that immunity for its presidents, who may serve no more than two five-year terms. But in an Israel without term limits, a prime minister could utilize such protection to not just discredit but actively work to dismantle the democratic framework, including the law enforcement authorities. Fighting for his political life, Netanyahu has taken not only to castigating his political opposition, but also the media, and most unconscionably of late, the police, which he has accused of bias and a lack of objectivity. Freed from the imperative to answer to any alleged crimes until out of office, a prime minister might be tempted to do everything to ensure that day never came.

Israel’s second longest-serving prime minister (he has to hang on until July 2019 to overtake David Ben-Gurion), Netanyahu has long since persuaded himself that his presence in the Prime Minister’s Office is crucial to Israel’s very survival. Many Israelis, and many of Israel’s supporters around the world, share that assessment. But more than Israel needs Netanyahu or any other prime minister, it should not require saying, we need our democracy. And the shapers of that democracy, with a wisdom for which they are not often credited, provided a framework to ensure that even situations such as that facing Netanyahu and his investigators would be handled with the appropriate sensitivity, the appropriate balance.

Prime Minister Benjamin Netanyahu, with then-cabinet secretary and current Attorney General Avichai Mandelblit, May 26, 2015. (Marc Israel Sellem/Pool/Flash90)

When answering our questioner on Tuesday night, I remembered the interview I conducted recently with the retired deputy Supreme Court president Elyakim Rubinstein. We had talked a little about the challenges facing Attorney General Avichai Mandelblit in weighing the evidence and determining whether to prosecute Netanyahu. Rubinstein, himself a former attorney general, was sensibly circumspect in what he wanted to say. But after we had moved on to discuss other issues, he chose to bring the conversation back to that vexed subject again, because he wanted to point out that investigating a serving prime minister is not a step that is taken lightly in Israel, and that extraordinary procedures apply.

Rubinstein walked over to one of the bookshelves in his office at the Supreme Court, took down a volume, leafed through its pages until he had found what he was looking for, pointed to the passage in question, and said: “We spoke earlier about the investigation. Look, it is written here in the Basic Law, ‘A criminal investigation will not be opened against the prime minister unless it is with the agreement of the attorney general. An indictment will be served by the attorney general to the district court.’ You see, this special process…”

Looking at some of the assorted egotists, extremists and relative incompetents who presume to think they could take on that most arduous of tasks, serving as prime minister of Israel, it is no surprise that many at home and abroad are fearful for an Israel without Netanyahu. But if our prime minister allegedly subverted the rule of law — if he cut illicit deals with business and media barons to boost their wealth, in return for benefits in the shape of gifts and favorable press coverage (as claimed in Cases 1000, 2000 and 4000) — then the suspicions must be probed. The investigations were not ordered casually; as Rubinstein was at pains to point out, a “special process” was required, overseen by the country’s most senior legal officer.

That’s how our democracy works. And a stable, properly functioning democracy is more central to Israel’s existence, to its capacity to thrive economically and meet its security challenges, than the maintenance in power of any prime minister, however gifted. Our stable, properly functioning democracy, ensuring the rule of law, is at the core of our national resilience. The choice between preserving that, and preserving Netanyahu, is no choice at all.

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