Authored by Martin Sherman via jns.org
“ … indictment is not evidence of guilt and does not detract from the presumption that the accused is innocent.” — Nathan Lewin, a leading U.S. attorney with more than 55 years of experience in trial and appellate litigation in federal courts, March 6, 2020.
“ … the danger in the novel legal theories introduced by [Attorney General Avichai] Mandelblit is stark. The criminal charges against the prime minister lack legal substance, and they threaten both the rule of law in Israel and the health of its democracy.” — Professor Avi Bell, Tablet magazine, Feb. 28, 2019.
The coronavirus (COVID-19) has largely overshadowed all other topics in the media and almost completely displaced any mention of Israeli Prime Minister Benjamin Netanyahu’s upcoming legal challenges.
Indeed, upon reflection, perhaps the strangest element of the media coverage of the looming epidemic is that no one has seriously suggested that the entire COVID-19 outbreak is a fiendishly cunning ploy by Netanyahu to deflect public attention from his imminent trial, set to open in the coming weeks.
After all, what better proof could there be that Bibi must be complicit in the global pandemic than the fact that it has eclipsed any almost any and all media coverage of said trial?
As far-fetched as this tongue-in-cheek barb might appear, it does help convey just how outlandish the proportions to which the “Any-One-but Bibi” syndrome have grown and the unscrupulous lengths to which Netanyahu’s chronically Bibiphobic political adversaries are willing to go in their anti-democratic efforts to remove him from office.
Indeed, flummoxed and infuriated by their inability to dislodge him from power via the ballot box and by their failure to find a candidate capable of displacing him on his/hers electoral merits, his political opponents have embarked on a sustained, seemingly obsessive effort to remove him from office by any other means they can concoct/conjure up.
If they were to succeed in this egregious endeavor, it would inflict a mortal blow on the fabric of Israeli democracy. But more on that later.
Suffice it to state that at this stage, the attempt to disqualify Netanyahu from office, despite the fact that he has been overwhelmingly reaffirmed by members of his party and by the general public as the most favored and suited candidate to lead the nation, is becoming increasingly acute in view of the harrowing challenges facing the country—to which, now, the ominous threat of the COVID-19 scourge must be added.
‘ … the appropriate criteria for criminal prosecution not met’
At least two features of the “Bag Bibi” saga standout as of particular note.
The first is that charges were made at all, at least in terms of criminal infractions of the law.
The second is that, by the prosecution’s own admission, the charges—at least the most serious one, that of bribery—could not be made on the basis of well-established legal practice and to do so required invoking “innovative” (read “contrived”), hitherto unprecedented interpretations of the law.
As to the former, a battery of prominent legal experts in the United States and Israel have not only expressed puzzlement at Netanyahu’s indictment, but have called for Israel’s Attorney General Avichai Mandelblit to drop the charges.
For example, in a piece titled Voters, Not the Police or the Courts, Should Decide Netanyahu’s Future, published in Haaretz shortly before the March, 2019 election, Harvard Law School Professor Emeritus Alan Dershowitz, one of the leading legal authorities in America, expressed grave reservations as to the merits of the then-proposed indictments of Netanyahu.
He wrote: “The issue at the center of these investigations seems trivial against the background of the existential crises Israel is facing. … The first probe, also known as case 1000, involves gifts of cigars and champagne Netanyahu received from close friends. … I strongly believe that the appropriate criteria for criminal prosecution have not been met in the cigar and champagne case against Netanyahu. … The other investigations (dubbed 2000 and 4000) pose even greater dangers to democratic governance and civil liberties. … In both cases, the prime minister is essentially being investigated for allegedly trying to push the media—with long histories of attacking him and his family—to be fairer … ”
The dangers to democracy and press freedom
He then went on to warn of the dangers of democracy and press freedom entailed in the then brewing legal action against Netanyahu: “… what we are left with is an exploration of motives … [which] are not the kinds of questions that prosecutors and police should be empowered to ask elected officials and media moguls as a part of a criminal investigation. …The relationship between politics and the media—and between politicians and publishers—is too nuanced, subtle and complex to be subject to the heavy hand of criminal law …police and prosecutors should not intrude on this complex, messy and nuanced relationship between politics and the media, except in cases of clear and unambiguous financial corruption well beyond what is alleged in the current cases … to criminalize these political differences is to endanger democracy and freedom of the press.”
Significantly, in an apparent effort to discredit the views it published by Dershowitz, or undermine their professional authority and/or objectivity, Haaretz found it necessary to add to Dershowitz’s credit line at the end of the article giving his professional/academic credentials, and that he had provided legal services to corporations controlled by Sheldon Adelson, who is known to be a strong benefactor of Netanyahu. I cannot recall this practice being employed for any other Op-Ed in the paper. If readers can provide such other examples, I would be more than intrigued to learn of them.
Almost a year later, Dershowitz made the following powerful argument against the Netanyahu indictments:“If somebody were to introduce legislation saying that it is a crime for a politician to seek good coverage and it came for a vote, it wouldn’t get a single vote in the Knesset. And that’s the best proof that it shouldn’t be prosecuted as a crime under today’s law.”
Dershowitz was also one of the members of a high-profile legal team that submitted a comprehensive legal brief to Mandelblit arguing that allowing favorable media coverage to be considered bribery represents a “dangerous threat” that will “cripple freedom of the press, suppress free speech and impair democratic political purposes.”
The brief’s other authors—Nathan Lewin, who has tried numerous cases before the U.S. Supreme Court (see opening excerpt) ; Richard Heideman; Joseph Tipograph; and Avi Bell (see opening excerpt)—contend that: “There has never been a single case in the democratic world in which a public figure was prosecuted, let alone convicted, of the ‘crime’ of receiving a requested ‘bribe’ of favorable publicity. Non-defamatory publicity favorable to a candidate or critical of his or her opponent has not, to our knowledge, ever generated a criminal prosecution.
Accordingly, the brief’s authors conclude that “the considerations presented in this Memorandum … in the opinion of undersigned counsel … compellingly require dismissal of all charges asserting “bribery” in any form.”
No precedent in the democratic world
Bolstering this unequivocal conclusion was its ringing endorsement by no less than ten additional prominent academics and practitioners of law. They wrote:
I/We have read the Legal Memorandum/Brief and Comparative Legal Analysis filed by Lewin, Dershowitz, Heideman, Bell and Tipograph, and are of the opinion that viewing positive media coverage as a sufficient “thing of value” to serve as the basis of a criminal charge of bribery threatens to chill protected speech, and constitutes a danger to freedom of speech, freedom of the press and democracy more generally. We are unaware of any precedent in the democratic world in which owners or members of the press have been convicted of bribery for the act of giving positive coverage in expectation of an official act being carried out in exchange.
- Larry Alexander, Warren Distinguished Professor of Law, University of San Diego
- Jeremy Rabkin, Professor of Law, George Mason University
- Pascal Markowitz, Attorney at the Paris Bar
- Joel T. Griffith, Esq. D.C. Chair, Young Jewish Conservatives
- Marc Greendorfer, President, Zachor Legal Institute
- Arthur F. Fergenson, Senior Counsel, Ansa Assuncao LLP
- F.R. Jenkins, Esq., Meridian 361 International Law Group
- Eugene Kontorovich, Professor of Law, Antonin Scalia Law School
- David Schoen, Attorney-at-Law
- Harvey A. Silverglate, lawyer and writer, of counsel to Boston’s Zalkind Duncan & Bernstein LLP
Ironically, another firm endorsement of the Memorandum’s position came from a rather unexpected source, from none other than the then-State Prosecutor Shai Nitzan, the very individual who led the legal action against Netanyahu.
This emerges clearly from an interview with Nitzan in May 2019. In it, he as good as admitted that Netanyahu could not be indicted on the basis of well-established legal practice, and to do so, new legal precedents needed to be invoked. In other words, to indict Netanyahu, it was necessary to criminalize deeds that were never considered criminal in the past.
Thus, during the interview, Nitzan was asked: “The determination that positive media coverage should be considered ‘bribery’ is a legal precedent. Is it appropriate to set such a precedent for the first time in a case against a prime minister?”
His stunning, almost self-contradictory, response was: “Every legal precedent has to begin at some point. For example, in Case 4000 [involving positive coverage in the Walla site], there was no disagreement and everyone agreed that it was right to indict on bribery, despite the fact that it did not involve envelopes filled with cash, but influencing media coverage. So, just because it involves the prime minister, we should delay the precedent for another time? I do not think that this decision involves a widening of the charge of bribery or breach of trust.”
This, of course, leaves one to puzzle over how, if the decision was in fact unprecedented, could it possibly not involve “widening the charges”?
Olmert vs. Netanyahu, the qualitative chasm
In addition to all these deeply disturbing factors, there is perturbing and persuasive evidence of selective prosecution, in which incumbent politicians undertook identical—or at least very similar—pursuit of favorable coverage with nary an indictment being filed against them.
All this should be born in mind when comparing the case of Ehud Olmert with that of Netanyahu. Olmert, who served as Israel’s prime minister from 2006 to 2009, was imprisoned for 16 months for bribery and obstruction of justice during his terms as mayor of Jerusalem and as trade minister.
Indeed, Netanyahu is often confronted with his 2008 demand from Olmert to resign, claiming that: “a prime minister up to his neck in investigations has no public or moral right to make fateful decisions for the country, because the suspicion exists … that he will make decisions in the interests of his personal political survival and not on the basis of the national interest.”
Understandably, this ostensibly creates an awkward situation for Netanyahu, exposing him to charges of hypocrisy and double standards—and calls for him to step aside putting the country’s national interest before his personal ones.
Both the comparison and calls are misplaced. For there is a sharp qualitative difference between the two cases.
Olmert, in stark contrast to Netanyahu, was indicted on existing interpretation of the law; no “creative” legal precedents were needed to be invoked to prosecute him; there was no claim of selective prosecution, or allegations of police investigatory misconduct. Olmert was strongly pressured by members of both his party and his coalition partners to resign. Netanyahu, on the other hand, is being strongly urged not to.
A mortal blow to Israeli democracy
All of these factors lead to one inescapable conclusion.
If Netanyahu is forced to step down under the weight of these “dubious” (to be charitable) indictments, then it will be a mortal blow to the fabric of Israeli democracy.
For it will indelibly demonstrate that any democratically elected leader—no matter how popular or how towering his achievements—can be deposed by the vindictive whims of a politically inimical civil society elite, using its position of power and privilege to circumvent the will of the people.