The politically motivated Netanyahu indictment

On Thursday, February 28, the Israeli attorney general announced his intention to indict Prime Minister Benjamin Netanyahu pending an indictment hearing a few weeks before the general election set for April 9, charging him with three counts of bribery, fraud, and breach of trust.

In most leading Western democracies, a sitting national political leader such as a prime minister or a president is immune from criminal indictment or criminal prosecution in criminal courts as long as he is in office.  The legal reasoning behind such policies in the U.S., France, Britain, Germany, Canada, and Australia is the prevention of politically motivated investigations and the undoing of national elections as decided by the voters.  But not in Israel.

According to Israeli law, after an attorney general announces his intent to indict, a pre-indictment hearing requested by the defendant will begin, after which the final decision to indict will be made by the attorney general, and a trial will follow.

The problem is that the timing of such actions could severely impact the election results by making a legally innocent until proven guilty prime minister appear guilty in the court of public opinion without affording him the time needed to defend himself in a complete indictment hearing prior to the election.

In previous high-profile criminal cases, the pre-indictment hearings took several months if not longer.  In 2012, defense minister Avigdor Liberman managed to avoid obstruction of justice and money-laundering charges after a hearing process that lasted over a year.  In the case of former Israeli prime minister Ariel Sharon, pre-indictment evidence persuaded prosecutors to drop the case entirely.  According to data from the prosecutor’s office, when an in-person hearing was held, 41% of the cases were eventually closed.

Recent polling indicates that Netanyahu would easily win the next election.  But with the attorney general’s public declaration, Netanyahu could lose the election, even if the case were dropped later on when he proves his innocence.

Such a result would make the attorney general the judge and jury, deciding that a person is guilty, undermining the public trust in the integrity of the judicial process, the election results, and Israeli democracy.

Finally, regarding the substance of the charges, Professor Alan Dershowitz published an open letter Wednesday addressed to attorney general Avichai Mandleblit, in which he negated charges of bribery and fraud against Netanyahu and said an indictment would threaten the democratic process.

Regarding Case 1000, in which Netanyahu is accused of handing out favors in return for gifts of cigars and champagne from close friends, Dershowitz wrote that the law is not quantitatively clear on what constitutes too many gifts and too many favors and that there are no unambiguous precedents, except prosecutorial discretion, to prove a breach of trust case.  Everyone acknowledges that friends are permitted to give wine and cigars to friends, even if the recipient is the prime minister.

In regard to Cases 2000 and 4000, in which the prime minister is accused of taking bribes by supporting legislation in return for positive media coverage, Dershowitz said such cases “pose even greater dangers to democratic governance and civil liberties,” by stating that such a prosecution would be based on “speculation concerning the state of mind of the participants.”

Dershowitz asserted that politicians’ decisions are often motivated by the coverage they would receive from media and to achieve some sort of self-serving result, saying that “to empower prosecutors to probe these mixed motivations is to empower them to exercise undemocratic control over crucial institutions of democracy.”  

The attorney general’s public announcement is a dangerous precedent, which will have a chilling effect on freedom of press and political action.