With Netanyahu indictment cast, what happens now? Not much (pending a hearing)

Due to lengthy pre-trial hearing process, the attorney general is not expected to finalize his decision on whether to press charges against the prime minister before early 2020

Raphael Ahren

Raphael Ahren is a former diplomatic correspondent at The Times of Israel.

Prime Minister Benjamin Netanyahu delivers a statement to the media in the Prime Minister's Residence in Jerusalem, February 28, 2019. (Yonatan Sindel/Flash90)
Prime Minister Benjamin Netanyahu delivers a statement to the media in the Prime Minister's Residence in Jerusalem, February 28, 2019. (Yonatan Sindel/Flash90)

After two years of investigations, police recommendations, legal deliberations and ad hominem accusations against various senior law enforcement officials, the indictment of Prime Minister Benjamin Netanyahu is signed. Getting it sealed and delivered could take years.

Attorney General Avichai Mandelblit’s announcement Thursday afternoon that he intends to press charges against Netanyahu in three separate cases — three times for fraud and breach of trust, and once for bribery — is only the beginning of what promises to be a drawn out process that is likely to dominate the headlines for years.

Vowing not to step down or plead out, Netanyahu is widely expected to try to drag the legal process out for as long as possible.

Other senior politicians in similar situations have quit. Former prime minister Ehud Olmert, for example, stepped down in 2008 even before the attorney general announced his intention to indict him. Netanyahu, on the other hand, has vowed to stay on, though with elections on the horizon, his political future may be up in the air.

Theoretically, Netanyahu could immediately suspend himself, saying he is taking time off to clear his name and to let the Israeli people go to the polls on April 9 without having to ponder whether they want to re-elect someone who may go to trial over criminal charges. That’s indeed what virtually all opposition parties demanded on Thursday (though his right-wing partners backed him entirely).

Israel Resilience leader Benny Gantz delivers a statement to the media in Tel Aviv on February 28, 2019. (Flash90)

“Imagine a situation where the prime minister spends most of his time dealing with his legal troubles. Israel deserves better,” Blue and White party leader Benny Gantz said.

But Netanyahu made clear in a televised speech on Thursday evening that he would not step down.

“I am telling you, citizens of Israel, this entire house of cards will collapse,” he said of the various allegations against him. “I am absolutely certain of it. I am 4,000 percent sure. I intend to serve you and the country for many years to come.”

Unless he’s actually convicted, Netanyahu may well indeed be able to continue to serve as prime minister, provided that his ruling Likud party wins the upcoming Knesset elections and stays in power.

Israeli Prime Minister Benjamin Netanyahu jokingly looks at his watch while speaking about peace in the Middle East at the National Building Museum November 9, 2015 in Washington, DC. AFP/Brendan SmialowskiI)

A Times of Israel poll published earlier Thursday showed how much of an effect the indictment announcement could have on the election, with Likud sinking and Blue and White rising. Cognizant of the damage it could cause, Netanyahu and his party fought tooth and nail until literally the very last moment to keep Mandelblit’s decision sealed until after April 9.

On Thursday, Likud filed for an 11th-hour injunction to keep Mandelblit from publishing his findings, but was rejected by the High Court.

The prime minister and his allies have argued Mandelblit’s decision would sway the vote and undermine the democratic process. They say he has rushed the process, under pressure from the media and the left.

On the other side, many said — and Mandelblit apparently agreed — that the electorate should not be kept in the dark about one of the leading prime ministerial candidates being accused of corruption. The attorney general’s office has also said it proceeded with its work without reference to the election schedule. It was Netanyahu who advanced the elections from their original date in November.

So what’s this hearing we’ve been hearing about?

With court petitions to gag Mandelblit exhausted and the decision to indict made public, along with 57 pages of case materials detailing the allegations, the next major stage will be the pre-trial hearing. This will only happen after Israeli voters have their say on April 9, probably long after.

Legal officials have taken pains to point out that the hearing is not a simple technical matter but could have significant bearing on the case. Only after a hearing can formal charges be filed.

The right to a hearing is anchored in Israel’s Criminal Procedure Law, which states that “the suspect will be entitled to apply in writing to the prosecution authority… and to make a reasoned petition to abstain from the filing of an indictment.”

Under the law, this request can be made within 30 days of the suspect receiving  notification of the intention to indict him.

In a 1991 directive, the attorney general’s office explained that the hearing is meant to grant the suspect “a fair opportunity to present his position.”

“The purpose of the hearing is to enable the suspect to present his arguments and to convince that, in his view, the evidence, or the public interest, do not justify an indictment against him,” the directive reads. “In the framework of this process, the suspect has the opportunity to point out to the prosecution its mistakes, be they legal or factual.”

Former president Moshe Katsav walks with his wife Gila, after his release from Ma’asiyahu Prison, where he served five years of a seven-year rape sentence, on December 21, 2016. (Photo by Aloni Mor/Flash90)

While most suspects fail to convince the prosecution to drop the charges entirely, some use the hearing process to negotiate a plea bargain. That happened, for instance, in the rape case against former president Moshe Katsav, though during the trial he reneged on the deal, and was eventually found guilty.

Netanyahu’s lawyers on Thursday evening ruled out a plea deal, asserting that the three cases will be closed after the hearing.

Netanyahu and his legal team contend, as the Likud party’s petition to the High Court of Justice on Thursday claimed, that the attorney general’s decision will “be reversed by 180 degrees as a result of the hearing.”

Some criminal suspects have successfully used hearings to argue their way out of an indictment altogether. In 2012, Avigdor Liberman managed to avoid obstruction of justice and money laundering charges, after a hearing process that lasted over a year.

In the Netanyahu case, the struggle may be much harder. Mandelblit has personally overseen the two years of investigation. The prime minister will have to convince him that his own carefully weighed decision to indict, taken with full awareness of the political implications, was utterly mistaken.

Looking to 2020

Analysts don’t expect Netanyahu’s hearing process to be any faster than Liberman’s was.

Mandelblit, in his written statement Thursday, promised to examine the defense team’s arguments “willingly and with an open heart.” His final decision on whether to indict Netanyahu is unlikely to come before early 2020.

The reasons for the delay are manifold. For one, the attorney general has decided not to release all case files until after the Knesset election, lest they be used for political purposes and campaign propaganda.

In practice, that means that Netanyahu’s lawyers will only be able to view all the charges against their client after April 9. They then need to be given enough time to review the entire material and properly prepare their counter arguments. Given the complicated nature of Cases 1000, 2000 and 4000, it appears reasonable to grant them several months to do that.

Attorney General Avichai Mandelblit speaks during a conference at the national library in Jerusalem on June 6, 2018 (Hadas Parush/Flash90)

In addition, lawyers and prosecutors are entitled to take time off during Passover, Independence Day and also for end-of-summer vacations. Therefore, it seems unlikely that the hearing could take place before the fall of 2019 — possibly only after the High Holidays season, which ends on October 22.

The 1991 directive, which was last revised in 2008, does not specify a time frame for the hearing, merely saying it should focus on the main points the prosecution raised in its draft of the indictment and be “relatively short [generally one meeting].”

“The time frame for holding the hearing will be determined as soon as possible in coordination with Mr. Netanyahu’s lawyers,” Mandelblit wrote in his statement Thursday. “Only after the completion of the hearing process and the weighing of the arguments raised in its framework will the final decision be made regarding the various cases.”

(Some legal experts have posited that Netanyahu may try, in the next Knesset, to secure immunity from prosecution altogether. In an interview with The Times of Israel two months ago, Prof. Mordechai Kremnitzer, one of the leading Israeli authorities on criminal and constitutional law, suggested that Knesset members loyal to Netanyahu might seek to pass legislation such as a version of the so-called French Law, preventing a serving prime minister from being indicted, citing the will of the people who have just re-elected him. He also highlighted a little-known clause in the law on immunity for MKs that already provides for immunity for an MK who has been indicted “not in good faith.”)

After the hearing, which will take place in Mandelblit’s office at the Justice Ministry in Jerusalem’s Salah a-Din Street, the attorney general and his team will have to ponder the defense team’s arguments. Only then will the final decision be made.

If Mandelblit is unimpressed by what was presented to him during the hearing, the Netanyahu cases will move to the court room — where, with the slow grinding of the wheels of justice, they could linger for years to come.

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