With immunity gambit, Netanyahu endangers his legacy and our democracy
The PM recently declared ‘There are judges in Jerusalem.’ If he’s innocent, he need not fear them. If he moves to place himself above the law, he’ll be tacitly admitting his guilt
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).
Four months ago, at the height of what would prove to be his unsuccessful bid to deter the attorney-general from publishing a draft corruption indictment against him before the elections, Prime Minister Benjamin Netanyahu commandeered the airwaves with a live broadcast from his official residence in which he claimed he was being unjustly treated.
His two principal targets were the police, who he claimed had failed to interview key witnesses whose testimony would ostensibly exonerate him, and the state prosecution hierarchy under Attorney General Avichai Mandelblit, who he asserted risked skewing the upcoming elections by publishing their allegations against him before he could persuade them to change their minds in a hearing process.
Netanyahu had long argued that Israel’s opposition and its media was pursuing a political witch hunt against him. His January 7 live broadcast painted the cops and the prosecutors as his political enemies too. But there was one democratic institution in which Netanyahu continued to declare his faith and trust: the judiciary. Quoting Menachem Begin, by way of Ehud Olmert, Netanyahu proclaimed at the start of that extraordinary appearance before the nation: “There are judges in Jerusalem.” As in: Even though most everybody else is out to get me, I recognize that I will be given a fair hearing if the allegations against me are ultimately tested in an Israeli court of law.
Much has changed since that rather desperate-looking Netanyahu beamed himself, with the consent of those purportedly biased broadcasters, into the nation’s living rooms 17 weeks ago. For one thing, Mandelblit went ahead and published the interim charge sheet, specifying that the prime minister would be indicted on three counts of fraud and breach of trust, and one count of bribery, unless his claims of innocence prove decisively persuasive in the hearing process. For another, despite the dark shadow that Mandelblit’s detailed allegations placed over him, Netanyahu has won reelection and is busy forming the next governing coalition. And for a third, the prime minister has apparently concluded that, when it comes to his legal embroilments, there may not be “judges in Jerusalem” after all.
In the final weeks of the campaign, Netanyahu played a calculatedly confusing game when he was asked whether he would advance or support legislation designed to give him immunity from prosecution. At times, he said clearly that he would not; at other times he said variously that he didn’t know, that he hadn’t thought of it, and that he had stymied such legislative initiatives in the past. On one memorable occasion, he said all of the above in the same TV interview in the space of just a few seconds.
Now, as he constructs his new multi-party coalition, one of its core potential constituents, the Union of Right-Wing Parties, has made clear that it will be advancing precisely such legislation — apparently by amending the current Knesset immunity law so that all MKs are automatically granted immunity from prosecution unless or until their fellow legislators vote, first in committee and then in the plenum, to lift it. The legislation’s personal champion, URWP’s Bezalel Smotrich, asserted disingenuously on Sunday that this was not a move tailored to Netanyahu’s benefit, but rather a wider necessity so that MKs don’t have to spend their time protecting themselves from wild criminal allegations when they should be going about their elected political business. It would appear, rather, that Smotrich’s bill is part of a deal under which Netanyahu — who personally brokered the formation of the URWP, by negotiating the entry terms for its Kahanist faction Otzma Yehudit — will advance the core URWP goal of beginning to annex West Bank settlements, in line with a pre-election prime ministerial pledge.
The idea that a head of government should be empowered to serve out his or her term generally undisturbed by the threat of criminal prosecution is not without some merit or international precedent. In France, notably, a serving president enjoys such protection — which is why there has also been some discussion about enacting a so-called French Law here. But France’s presidency has term limits; Israel’s prime ministership does not. Legislation, such as the amendment Smotrich intends to pass, that would render Netanyahu immune to prosecution would constitute a hammer blow to Israeli democracy: Israel’s prime minister, no matter how corrupt, need never face its judges so long as he remained in power, in a system wherein he retains power for as long as the public wants him. (It’s worth noting that, under existing Israeli law, the prime minister is not required to step down if he is charged, but rather only after he is convicted or, possibly, only after the appeals process is exhausted.)
Efforts in the coming weeks and months by Smotrich to pass amended immunity legislation will doubtless be challenged in the High Court. But the URWP, and indeed some MKs in Netanyahu’s own Likud, have indicated that they intend to curb the power of the court to overturn Knesset legislation; indeed, Smotrich is demanding the job of justice minister precisely to advance such an agenda, as well as to revolutionize the entire process by which judges are appointed and to dilute the authority of the attorney-general. Yariv Levin, the Likud minister who is said to be Netanyahu’s other leading choice for the justice portfolio, is also a declared advocate of reining in the court, reducing its authority and enabling the Knesset to re-legislate laws it overturns. The perpetually circumspect former deputy president of the Supreme Court, Elyakim Rubinstein, warned in a Hebrew radio interview last week that what was being advocated for the court by the candidates for justice minister “is not a correction; it’s a breach.”
Benjamin Netanyahu has just been re-elected for the fourth time in succession and the fifth time in all — a quite remarkable achievement, based on several key factors including but not limited to: plenty of Israelis trust him more than any other politician to keep this country safe; he has been the prime minister for so long now that plenty of Israelis find the prospect of a different prime minister scary; plenty of Israelis recognize his proven ability to forge vital, beneficial diplomatic relationships with world leaders, notably right now US President Donald Trump and Russian President Vladimir Putin, and doubt that his rivals could do the same; plenty of Israelis vote Likud because they’ve always voted Likud; the opposition Labor party looks a spent force, and its key focus on advancing peace efforts with the Palestinians lacks credibility for most Israelis; Netanyahu’s key rival Benny Gantz self-evidently ran an insufficiently convincing campaign — a younger neophyte who nonetheless looked exhausted by the end, paling by comparison with Netanyahu’s relentlessly energized performance.
And the fact is that Netanyahu is a ferociously smart, deep-thinking leadership heavyweight who has kept this country relatively safe, has strategically eschewed military adventurism, does bestride the world stage with articulate assurance, and has gained Trump’s support for moves supported by the Israeli consensus such as US recognition of Jerusalem as Israel’s capital and the Golan as Israeli territory. On July 17, Netanyahu will become Israel’s longest serving prime minister, overtaking our very first, David Ben Gurion. His legacy as an Israeli political colossus would seem to be assured.
But his assault over the past two years on the pillars of Israel’s democracy — on independent media, on the legitimacy of Israel’s minority Arab community (underlined again on election day this year with his Likud hidden cameras ploy), on the cops and on the state prosecution — is already staining that legacy. And his resort to undemocratic legal machinations to stay out of court would blacken it.
Contrary to the assertion made by some in Likud since election day, Netanyahu’s victory does not neuter the criminal allegations against him. The elections may indeed have been all about Netanyahu; they may indeed have amounted to a referendum on Netanyahu: Do we want him as prime minister? Do his security and diplomatic successes outweigh concerns about his domestic divisiveness? But they were not a referendum on his criminal culpability. Indictments don’t get voted on by the electorate; they get filed by prosecutors and judged in courts of law. At least they do in a democracy.
In Israel’s democracy to date, the democracy through which Netanyahu has secured election victory after election victory, nobody has been above the law — and that includes presidents (Moshe Katsav) and prime ministers (Ehud Olmert). If Netanyahu places himself — or allows himself to be placed — above the law, he will have begun to destroy our democracy.
He will also, not incidentally, have tacitly admitted his guilt. For as he said in that TV appearance 17 weeks ago, there are indeed judges in Jerusalem, fair-minded and capable of administering justice in the three complex cases facing the prime minister. And it will be clear that Netanyahu dare not place his fate in their hands.
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David Horovitz, Founding Editor of The Times of Israel