Interview'The legal system is trying to tame politics'

Why some on the right see Netanyahu’s trial as unjust – even if he’s guilty

Prosecuting the PM for trading influence for favorable media coverage isn’t an attack on the right, but on ‘the legitimate boundaries of politics,’ says attorney Gil Bringer

Haviv Rettig Gur

Haviv Rettig Gur is The Times of Israel's senior analyst.

Prime Minister Benjamin Netanyahu chairs the weekly cabinet meeting in Jerusalem on June 7, 2020. (Marc Israel Sellem/Pool)
Prime Minister Benjamin Netanyahu chairs the weekly cabinet meeting in Jerusalem on June 7, 2020. (Marc Israel Sellem/Pool)

The corruption trial of Prime Minister Benjamin Netanyahu is on the back burner, yet it continues to loom large in Israeli politics. It is still the subject of regular media leaks, driving a persistent din of confrontations between the prime minister and prominent journalists, and affecting Netanyahu’s political calculations at nearly every turn.

It is also the subject of the most significant and popular conspiracy theory in Israeli public life, one pushed by the prime minister himself.

The theory goes something like this: Netanyahu committed no wrong but is being hounded by police investigators and prosecutors, including an attorney general and police commissioner he appointed, with a leftist media egging it all on with the single overriding goal of ousting him from power and bringing the left, or at least some weak-kneed right-winger who will do the left’s bidding, to power.

It’s a ham-fisted claim, and few Israelis who don’t identify with Netanyahu’s politics take it seriously. Too many distinct individuals and organizations must all fall in with the conspiracy to make it work.

One might convincingly claim that a single prosecutor in a prominent case could become enamored with their own power. Or even that a string of investigators might be driven to coordinated unethical behavior by a problematic organizational culture in the police. Or, too, that leftist leanings in the judiciary might stack the deck against a right-wing prime minister.

True or not, such claims are at least plausible. Cops, prosecutors and judges are only human, after all.

Attorney General Avichai Mandelblit, right, with Interim Police Commissioner Motti Cohen in Jerusalem, on December 18, 2019. (Olivier Fitoussi/Flash90)

But Netanyahu’s claim is larger. “Citizens of Israel,” he declared in a televised broadcast shortly before the opening of his corruption trial on May 24, “what is on trial today is an effort to stymie the will of the people — an attempt to bring down both me and the right-wing camp…. Elements in the police and the prosecution joined forces with the leftist media — I call them the ‘anyone but Bibi’ gang — to manufacture baseless and absurd cases against me.”

“The goal is to bring down a strong prime minister from the right and thus keep the right out of power for many years,” he explained.

It’s in the details that the scale of this claim becomes clear. Netanyahu is arguing that former police commissioner Roni Alsheich, a religious, conservative former deputy head of the Shin Bet appointed to head the police by Netanyahu himself — and last month called a “criminal” in his own right by the prime minister — pushed police investigators to pursue the prime minister despite knowing there was no case. The police investigators all cooperated, with none leaking any misgivings to the press from that famously leak-prone organization.

State prosecutors then took up the cause, all, again, falling in line with the conspiracy; then-state attorney Shai Nitzan, known to favor a harsher line on corruption cases, including Netanyahu’s, then managed by some mysterious power to coerce Attorney General Avichai Mandelblit, another religious conservative who once served as a top Netanyahu aide and was his choice for attorney general, to turn on his boss and pursue a prosecution of the prime minister he knows to be unfair.

Several judges, attorneys and state’s witnesses all played parts in the vast conspiracy — with everyone at every step knowing full well that it was all a lie meant to bring down an innocent man, but none ever breathing a word of it, even anonymously, to the media.

Netanyahu’s conspiracy theory encompasses too many unlikely conspirators and alleges a distinctly un-Israeli capacity for silence on the part of too many actors to be taken as a serious argument about the facts of the case.

Prime Minister Benjamin Netanyahu is surrounded by Likud lawmakers as he gives a press statement ahead of the start of his trial at the Jerusalem District Court (Yonatan Sindel/Flash90)

Of course, it’s nothing of the kind. Polls have shown repeatedly that belief in the conspiracy tracks almost perfectly with political support for Netanyahu, that it’s a belief rooted not in gullibility but in political identity. Netanyahu is no fool, and his political managers no slouches when it comes to polling. The conspiracy claim is not meant for the courtroom or for his political adversaries. Its purpose is to provide a sense of plausible innocence to his base, to nip in the bud any doubts about his fitness for the PM’s chair.

But is that it? Does the fact that his own defense of himself appears geared only to his true believers mean he has no deeper or more believable argument to deploy against his investigators and prosecutors?

The day after the opening of Netanyahu’s trial, one of the right’s sharpest legal commentators showed that Netanyahu’s calculated antics and accusations don’t represent the totality of the right-wing critique of his trial.

There is real concern on the right about the trial, an argument against the Netanyahu corruption probes that doesn’t require a conspiracy to explain how the many interlocking parts of the legal system might together produce an unjustified indictment — and one that doesn’t exonerate Netanyahu even as it defends him.

‘In everything related to case 1000, Netanyahu stands alone’

“Netanyahu was right… that it isn’t him [alone] who stands trial,” attorney Gil Bringer, a lecturer at Ono Academic College and former top adviser to Ayelet Shaked when she served as justice minister, wrote in a May 25 column in the business journal Globes.

“But in the same breath, he was also completely wrong. Despite his intensive effort to convince us of it, Netanyahu’s claim that the entire national camp is joining him in the narrow dock of the Jerusalem District Court is wrong.”

Attorney and columnist Gil Bringer. (Courtesy)

Bringer was scathing, mocking: “The ‘will of the people’ (as Netanyahu put it) isn’t on trial, nor is the right (as Minister Amir Ohana put it), nor Likud (as MK Miki Zohar put it) nor ‘Second Israel’ (as Dr. Avishai Ben-Haim said)…. The ‘will of the people’ didn’t drink the champagne and ‘Second Israel’ didn’t smoke the cigars.” The champagne and cigars were references to the accusation in Case 1000 that the prime minister received expensive gifts over many years from billionaires, then allegedly acted to advance their interests while in office.

“In everything related to case 1000, Netanyahu stands alone,” he said.

But there are two more cases, dubbed 2000 and 4000 by police investigators, in which much more than the prime minister’s personal fate is at stake, Bringer believes.

Yet it isn’t the right that stands alongside the prime minister in the dock, he wrote, but “the legitimate boundaries of Israeli politics. Through the Netanyahu cases, the legal system is trying to tame politics — and not necessarily just the right.”

In an interview this week, The Times of Israel asked Bringer what he meant by the “taming” of politics, and why he believes the Netanyahu trial is dangerously unfair to the prime minister even if the allegations against him are all proven true.

Bringer began by insisting that Case 1000, in which Netanyahu is suspected of taking expensive gifts from wealthy benefactors — generally considered the least serious of his three corruption cases — is actually the only one in which the prime minister’s criminality is a legitimate question for the courts to decide.

Prime Minister Benjamin Netanyahu (R) with his lawyers at the Jerusalem District Court for the start of his trial on corruption charges, May 24, 2020. (Amit Shabi/Pool/Flash90)

“There are detailed rules about what a public servant can receive as gifts. When I worked for Ayelet [Shaked from 2015 to 2019], I had a meeting with Google. They then sent me a gift. It was a [robot-shaped] plastic pen and marker holder. It was worth maybe 10 shekels ($2.90). I wanted to give it to my nieces.”

But try as he might, he couldn’t find a way to do so.

“I went to the [Justice Ministry’s] legal adviser [to get permission]. She said, ‘You have to go to the gifts committee,'” a special body in the ministry that tracks and approves gifts given to public servants in the fulfillment of their duties.

“I said, ‘I’m not going to embarrass myself by going to the committee for 10 shekels.’ She answered, ‘So destroy it.’ I said, ‘As a religious Jew, bal tashchit, I can’t destroy it.’ So she said, ‘Then return it.’

“So I returned it. I returned a gift worth 10 shekels. Now, a politician who receives gifts worth NIS 700,000 ($200,000),” as alleged in the Case 1000 indictment, “that very clearly might be a criminal situation that has to be checked in a court of law.”

The point of his story about the 10-shekel pen holder comes not simply to illustrate the validity of the Case 1000 indictment — it’s to clarify something important about Bringer’s argument about the other two cases.

“When I say 2000 and 4000 aren’t criminal cases, that’s not because I’m a moral nihilist. I’m the type of person who returns a 10-shekel gift,” he said. “It’s because we need to hold the line against the imperialism of the prosecution.”

Prime Minister Benjamin Netanyahu leads a cabinet meeting at the Prime Minister’s Office in Jerusalem on December 29, 2019. (Marc Israel Sellem/Pool)

The imperialist prosecution

In Case 2000, Netanyahu is accused of conspiring with Yedioth Aharonoth publisher Arnon Mozes to pass legislation to weaken a rival daily in exchange for more positive coverage in Yedioth. In 4000, the only case in which Netanyahu faces the charge of bribery, the prime minister is accused of pushing regulatory favors for Bezeq telecom controlling shareholder Shaul Elovitch in exchange for positive coverage in the Elovitch-owned Walla news outlet.

In both cases, Netanyahu allegedly attempted (and in 4000 allegedly succeeded) to obtain favorable media coverage in exchange for using the powers of his office to benefit media tycoons.

But unlike in Case 1000, where it’s easy to track a necklace’s path to the individual recipient, who’s the beneficiary of positive media coverage?

“Netanyahu is the leader of the right,” Bringer noted. “Where does the line run between him acting for himself and acting for his political camp?”

In Case 2000, for example, Netanyahu merely discussed with Mozes the idea of advancing legislation in exchange for positive coverage. Neither side ever followed through with actions.

“I may think that [Netanyahu’s] behavior in 2000 stinks, but I just can’t argue it’s a crime. I don’t know anyone outside the state prosecution who thinks 2000 is a serious case,” said Bringer.

Publisher and owner of Yedioth Aharonoth newspaper Arnon ‘Noni’ Mozes arrives for questioning at the Lahav 433 investigation unit in Lod on January 17, 2017. (Roy Alima/Flash90)

What of 4000, where the allegations go far beyond theoretical discussions of a quid pro quo. According to the indictment, Netanyahu allegedly tailored a billion-shekel telecom regulatory decision to the needs of Walla owner Elovitch, purportedly favoring Elovitch’s needs — or rather, Netanyahu’s own media coverage needs — over those of the public that entrusted him with that regulatory power in its name.

“I agree that 2000 and 4000 are not the same. Case 4000 is more serious. But the problem is the same. It’s all about the difficulty in finding the crime itself. Negotiations in a regulatory environment” — as between telecom companies and the Communications Ministry Netanyahu led in the years in question — “are incredibly hard, the back-and-forth between political power and the business sector, the give-and-take, is very clever and very complex,” said Bringer. “The idea that the state prosecution can draw a bright red line and say, ‘Up to here it’s legitimate negotiations, but from this line it’s criminal’ — I just don’t believe that’s possible. I know so many situations when the political and professional intertwine.”

When the regulator is an elected politician, “It’s almost impossible for them not to mix together in those situations,” he said.

The problem with both cases lies not in the suggestion Netanyahu behaved unethically, but in the unprecedented way prosecutors decided to assign criminality to that behavior.

“There’s no country in the world, no example ever, of this being bribery. Positive coverage in exchange for doing ‘X,’ in the political world is like love and marriage, a horse and carriage; it goes together, it’s not something you can split apart. The idea that you can separate an offer of positive coverage from political decisions is an attempt to domesticate politics, to legalize it,” according to Bringer.

Shaul Elovitch arrives at the Tel Aviv Magistrate’s Court for an extension of his remand in Case 4000, February 22, 2018. (Flash90/File)

“I worked with lots of politicians for ten years in the Knesset. If [the promise of] positive coverage counts as attempted bribery, I was a witness to dozens of crimes. And I wasn’t a witness to dozens of crimes,” he said. “If the law can’t define ahead of time what’s allowed and what isn’t, then the solution isn’t to criminalize politics. The solution is to take a step back, reorganize the law and focus on what exactly should be allowed and what shouldn’t.”

The ‘legalizing’ of politics

The Netanyahu trial, Bringer asserted, “is the climax of a years-long process in which law enforcement authorities try to ‘legalize’ politics, to enslave it, to turn it into something that functions under legal rules and stipulations, to turn the legitimate give-and-take relationships that make it up and are at its core into relationships subjected to a legal microscope.”

And it’s no accident that Israeli prosecutors, together with police investigators, a police commissioner, an attorney general and all the rest of the characters in this drama went along with the innovation. It is a shift four decades in the making.

‘If [the promise of] positive coverage counts as attempted bribery, I was a witness to dozens of crimes. And I wasn’t a witness to dozens of crimes’

Bringer’s May 24 column provides a broad sketch of how right-wing critics see the expansion of the legal system into the realm of executive-branch decision-making.

“It began with the castration of politics in its administrative aspects in the ’80s,” as legal advisers started to enforce strict rules on political appointments and other matters, he wrote. “The law was on the politicians’ side at the time, but ‘reasonableness‘ fell hostage to the legal clerks,” becoming a legally binding test for countless actions by political leaders.

“It continued with the constitutional castration of politics in the first half of the ’90s, when some laws became illegitimate because of the constitutional revolution led by former chief justice Aharon Barak,” Bringer continued.

Former Supreme Court chief justice Aharon Barak speaks at the funeral service for late former chief justice Meir Shamgar at the Supreme Court in Jerusalem, October 22, 2019. (Hadas Parush/Flash90)

“And it reaches its apex now, when politics itself becomes an illegitimate thing. It’s a slippery slope until the legal advisers run policy.”

The right’s argument “that good press coverage has never before been seen as criminal bribery” is no mere technicality, according to Bringer. “It says something profound about the relationship between politics and law. It shows that criminal law has never before stepped into the political process and attempted to scrutinize it with the criteria of the criminal arena. That’s why there’s no legal precedent” for the crimes Netanyahu is accused of committing.

“This appears to be the first time, globally, that politics has been tested in this way,” he said.

Netanyahu’s claim of a leftist conspiracy is ludicrous, Bringer asserts, in part because Netanyahu’s record shows him to be less than the hard-right paragon he sometimes pretends. There’s also the fact that every prime minister in two and a half decades “had the ‘privilege’ of feeling the long arm of the prosecuting authorities.”

For Bringer, “Netanyahu isn’t a defendant because he’s the leader of the right. He’s a defendant because he’s a leader at all, because he deals in politics at its highest level.”

No conspiracy was required to bring those vague charges of “breach of trust” against Netanyahu in Case 2000 for the alleged crime of offering to effect a policy change in exchange for positive media coverage. A slow-moving decades-long shift in the Israeli legal system’s view of its role and purpose was enough to bring all parts of the system together to that conclusion.

Prime Minister Benjamin Netanyahu leads the weekly cabinet meeting, at the Prime Minister’s Office in Jerusalem, on December 1, 2019. (Marc Israel Sellem/Pool via JTA)

Conservative critics of this shift are often not keen to defend Netanyahu himself. Many, including Bringer, are frustrated that their struggle is coming to a head when he is positioned as the champion of the cause.

Netanyahu is “the least helpful model for this fight,” said Bringer. “The intertwining of Case 1000, which concerns Netanyahu’s personal hedonism, with 2000 and 4000, which deal with the legitimate boundaries of politics, sullies the struggle.”

Even so, the fight is vital. Otherwise, Bringer said, “when the prosecution finishes dealing with [Netanyahu], politics will have finally transformed into an arena wholly controlled by legal advisers.

“If we let the state prosecution have its way in 2000 and 4000, then Netanyahu will be the last politician to be indicted on these crimes,” Bringer said. “Not because there won’t be corruption, but because there will no longer be any politicians. It’s hard to imagine what room would be left for politicians to act.”

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