Israel

Israel’s Attorney General Moves Forward with Netanyahu’s Indictment: What Happens Next?

By Elena Chachko
Sunday, March 3, 2019, 4:12 PM

After years of investigations, Israeli Attorney General Avichai Mandelblit has announced his decision to consider indicting Prime Minister Benjamin Netanyahu with multiple counts of graft. As expected, Netanyahu reacted with fire and fury, calling the investigations a witch hunt. He vowed to continue leading Israel for many years to come—implying that he would not step down if indicted. The attorney general’s announcement is particularly dramatic in light of the upcoming elections in Israel, scheduled for April 9. In this post I outline the meaning and practical implications of the announcement, as well as the consequences of an indictment against the prime minister in the coming months. I explored the latter topic in detail in a previous Lawfare post on the legal framework governing the indictment of a sitting prime minister in Israel.

The Attorney General’s Decision 

The attorney general’s decision relates to the findings of three investigations involving Netanyahu as a suspect. The first, labeled case 1000, pertains to lavish gifts Netanyahu and his wife, Sara, allegedly received from prominent businessmen Arnon Milchan and James Packer. In return for the gifts, Netanyahu is said to have advanced Milchan’s interests in various contexts despite being in a conflict of interest. According to the attorney general, Benjamin and Sara Netanyahu received goods equivalent to roughly $265,800 over a period of 10 years. The bulk of those goods were delivered in the past five years. In this case, the attorney general decided that the evidence was sufficient to indict Benjamin Netanyahu for fraud and breach of trust with a reasonable chance of conviction. He decided not to move forward with a bribery count, concluding that the evidence was insufficient to prove a direct link between the goods provided and specific action by Netanyahu. 

The findings of the second investigation, labeled case 2000, allege that Netanyahu tried to strike a deal with Arnon Mozes, the publisher of Israel’s second largest newspaper, Yedioth Ahronoth. This took place in 2014, in advance of the previous Israeli elections. Under the alleged deal, Netanyahu would receive positive coverage in media controlled by Mozes in return for taking measures, including possibly supporting legislation, to limit the circulation of Israel Hayom, Yedioth’s main rival. (Israel Hayom is owned by Sheldon Adelson, to whom Netanyahu has been very close; over the years the paper’s line was strongly pro-Netanyahu.) Here, too, the attorney general decided that there was sufficient evidence to indict Netanyahu for fraud and breach of trust—but not for bribery. Mozes, on the other hand, met the threshold for being indicted for proposing a bribe to a public official.

The third investigation, labeled case 4000, involves the most serious charges. It concerns the relationship between Netanyahu and Shaul Elovitch, the controlling shareholder of Bezeq, Israel’s largest telecom company. Netanyahu allegedly gave preferential regulatory treatment to Bezeq in return for favorable coverage on Walla, a popular news website controlled by Elovitch. Based on the findings of the investigation, the attorney general concluded that the relationship between Netanyahu, Elovitch and Elovitch’s wife, Iris, was a quid pro quo relationship. According to the attorney general, Benjamin and Sara Netanyahu repeatedly demanded more favorable coverage on Walla, and Elovitch did their bidding by dictating instructions to the website’s leadership. Netanyahu, in turn, allegedly authorized or was involved in regulatory action that significantly benefited Bezeq and other Elovitch businesses during the same period. The benefits Elovitch allegedly received as a result of Netanyahu’s actions are valued at roughly a billion Israeli new shekels (about $280 million). Netanyahu’s efforts to advance Elovitch’s interests, the attorney general alleges, included the removal of the general manager of the Ministry of Communications, who opposed Elovitch’s demands, and his replacement with a Netanyahu confidant who had no previous experience in the communications sector. His reported actions went against the position of career communications officials. According to the attorney general, the evidence indicates that Netanyahu intervened in regulation with the intent to reward Elovitch, and that Elovitch obliged the Netanyahus’ demands regarding Walla with the expectation that Netanyahu would use his position as prime minister to benefit Elovitch’s businesses.

Therefore, the attorney general decided that there was enough evidence to indict Benjamin Netanyahu and Shaul and Iris Elovitch for bribery, in addition to counts of fraud and breach of trust against Netanyahu. He noted that there was a consensus on the viability of the bribery count among senior law enforcement officials during their internal deliberations. At the same time, the attorney general concluded that evidence was insufficient to indict Sara Netanyahu and her and Netanyahu’s son Yair for bribery and obstruction of justice. (The latter charge was based on the testimony of a state witness, who said that Sara Netanyahu instructed Iris Elovitch to delete potentially incriminating texts from her phone. The attorney general noted that the testimony was found to be credible but that there was no corroborating evidence. Yair was allegedly involved in this effort and in directing coverage on Walla.)

Throughout his decision, Mandelblit described the progression of the three investigations, emphasizing that he personally oversaw them and made all related decisions. He detailed the scope of the investigations, which involved interviews with dozens of witnesses—including the suspects, along with media research, seizure of relevant documents, state witness agreements with Netanyahu confidants as well as dozens of meetings of the highest echelons of Israeli law enforcement to assess the evidence and legal issues. Mandelblit also underscored his extensive deliberations after he received all of the investigation materials in December.

He stressed that those deliberations followed a predetermined work plan concluded in November 2018—that is, before the dissolution of the Knesset at Netanyahu’s initiative, and before the scheduling of elections in April. This was likely a retort to those in Netanyahu’s environment who have accused the attorney general of attempting to influence the outcome of the elections by issuing the decision at this time. (Others have argued that Netanyahu decided to hold elections in the first place because of the attorney general’s impending decision, not the other way around.) Remarkably, the attorney general even detailed the various positions expressed by the officials who participated in the internal deliberations with respect to each case and suspect, revealing that there were disagreements among senior officials on evidentiary and legal questions, including whether there was a reasonable chance of conviction on certain counts, and whether other, more serious counts should have been invoked.

This transparency regarding the process seems to be part of an effort to convey that the prosecution did its homework, that the decision was not taken lightly, that it was not driven by political considerations and that the buck stops with the attorney general (a former secretary of cabinet under Netanyahu). Alongside the document outlining his decision, Mandelblit’s office released a detailed summary of the offenses Netanyahu is suspected of committing, complete with colorful details about Benjamin and Sara Netanyahu’s interactions with media-sector players over the minutiae of various news reports and images, and their involvement in vetting prospective Walla reporters and editors.

What Did the Attorney General Actually Decide?

The first thing to note is that Mandelblit announced only that he is considering indicting Netanyahu. In other words, the announcement does not mean that Netanyahu would necessarily be indicted. This is not specific to Netanyahu’s case, but rather a feature of the Israeli justice system: Netanyahu, like most criminal defendants in Israel who face serious charges, will get a hearing before a final decision is made. Based on news reports and precedents, the hearing will take place several months from now, after the April elections. This process is governed by the guidelines of the state attorney—the official subordinate to the attorney general who directs prosecutions—for notification and hearing in criminal proceedings.

In a nutshell, the guidelines provide that a suspect should receive two letters of notification from the prosecution prior to being indicted. The first is due when the investigation material is transmitted from the investigating authority to the prosecution. The second is due when the prosecution decides to consider indictment pending a hearing. It outlines the offenses attributed to the suspect. This was the summary of offenses that the attorney general released together with his decision. Once suspects receive a second notification, they have 30 days to state their case and request in writing that the prosecution not indict. The suspect may also request an in-person hearing, which is all but guaranteed when the suspect is the prime minister. The guidelines provide that the hearing should generally take place within the 30 days. But this time frame is extendable with proper approval—and the suspect being the prime minister is certain to be viewed as meriting exceptional procedural treatment and lengthy consideration. Therefore, it is quite possible that the process would take months if not more than a year.

What If Netanyahu Is Indicted While in Office?

If Netanyahu remains prime minister after the April elections and refuses to resign, Israel would be in uncharted territory. In a previous Lawfare post, I explored the legal framework governing the indictment of a sitting prime minister and relevant past practice. Previous prime ministers who faced an imminent indictment while in office—Yitzhak Rabin and Ehud Olmert—resigned voluntarily, and there is no precedent for a prime minister leading the country while being a criminal defendant in an ongoing trial for offenses so deeply intertwined with his role as prime minister.

Therefore, there are open questions as to whether Netanyahu could be forced to resign upon indictment. As I explained in the previous post, a prime minister can, in theory, stay in office even after being indicted. Under Israel’s Basic Law: The Government, an indicted prime minister is automatically removed only when he is convicted and the verdict becomes final—that is, when the time frame to appeal the verdict elapses, or the guilty verdict is affirmed on appeal. In the period between a conviction and the verdict becoming final, the Knesset may, but is not required to, vote to remove the prime minister. A trial and potential appeal could take years. In Olmert’s graft case, the entire process took seven years.

The Israeli Supreme Court has previously ordered the removal of elected officials—government ministers, deputy ministers and mayors—upon indictment for serious offenses involving corruption or abuse of power, even though the cases did not meet the applicable statutory threshold for removal. The court has applied administrative law doctrine in asserting that the failure of the prime minister (in the case of ministers) and city councils (in the case of mayors) to remove those officials after they had been indicted was extremely unreasonable. Under existing case law, then, statutory removal requirements do not exhaust the circumstances in which an elected official’s tenure could be terminated due to alleged criminal wrongdoing. The potential implication for the prime minister would be that although the Basic Law requires automatic removal only when a conviction becomes final, the Supreme Court could order his removal at an earlier stage of the criminal proceedings should the Knesset fail to act.

Needless to say, such a judicial move would be extremely problematic from a democratic and constitutional perspective—especially if it comes on the heels of an election that reaffirms popular support for Netanyahu despite his pending indictment and the troubling details that have come to light about his alleged abuse of office for personal gain. As I pointed out previously, there are also legal considerations that distinguish the potential judicial removal of the prime minister from existing precedent:

… [T]here are ample grounds for questioning the application of [precedents] to the situation of a prime minister facing criminal charges. [Previous cases] were decided based on administrative law principles that apply to the prime minister as chief executive and to city councils as administrative authorities. The question of whether a prime minister can be removed in circumstances other than those explicitly provided for in the Basic Law implicates additional complex constitutional issues. It is one thing to hold that a city council’s failure to remove a mayor who is accused of criminal wrongdoing is unreasonable as a matter of administrative law. It is a completely different thing for the Supreme Court to challenge the failure of the national legislature, the Knesset, to act, should it fail to remove the prime minister if and when he is indicted. The stakes here are particularly high because the removal of the prime minister means the resignation of the entire government.

Furthermore, the provisions of the Basic Law governing the prime minister’s removal due to criminal wrongdoing seem to set the bar for removal higher than the constitutional and statutory provisions that address ministers, deputy ministers and mayors. This might serve as an additional basis for distinguishing the existing precedents in the case of the prime minister. Articles 23(b) and 27 of the Basic Law provide that a government minister or deputy minister convicted of an offense with “moral turpitude” would automatically be removed from office once the verdict is rendered. Unlike the prime minister, they cannot remain in office until the verdict becomes final. Article 20 of the Tenure Statute provides that a mayor would be automatically suspended if convicted with “moral turpitude” until the verdict becomes final. No such provision exists in the Basic Law with regard to the prime minister, which indicates that the Knesset intended to bestow a more robust constitutional protection from removal upon the prime minister.

Still, having a prime minister on trial for corruption and faced with a possible prison sentence run a state in tumultuous times is hard to fathom. The charges, as well as the attacks by the prime minister on law enforcement, the media and the Israeli left, might have negative long-term implications for the health of Israeli democracy and public respect for its legal institutions.

It is possible that the conflicting legal and constitutional debate regarding the removal of a sitting prime minister will never come to a head if a new government emerges in April. But if Netanyahu remains the prime minister, holds on to office if indicted as he said he would and is not forced to resign by the Knesset, Israel might be headed for an unprecedented constitutional crisis.

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