The recent release of taped telephone conversations underscores the bitter irony that the politically motivated initiative to indict Netanyahu on contrived charges will end up undermining those who launched it.
By: Martin Sherman
“There is something sick in the State Prosecutor’s Office; Shai Nitzan is not fit to be the State Prosecutor.” — Judge Hila Gerstel, former Commissioner for Prosecutorial Oversight
“Public trust in the police—the lowest in the West … only 22% of Israelis believe that judges don’t take bribes.” — Haaretz, Oct. 31, 2011
“Public approval of the police [is] at all time low—below all other public services.” — Haaretz July 7, 2013
”Sed quis custodiet ipsos custodes? (But who will guard the guardians themselves?)” — Juvenal, a Roman poet (circa 55 C.E.–circa 127 C.E.), Satire VI, line 347
The Israeli law-enforcement establishment is starting to unravel.
Recently released recordings
When historians look back on this dismal process, they will trace it to the endeavor to bring patently contrived indictments against Benjamin Netanyahu, in a move widely considered—by both laymen and prominent jurists—to be a flimsily disguised attempt at a legalistic coup, to unseat an incumbent prime minister after repeated failure to do so by the accepted democratic process at the ballot box.
Indeed, the recent release of taped telephone conversations between the former head of the Israel Bar Association, Effie Naveh, and Attorney-General Avichai Mandelblit, exposed yet another layer of the increasingly problematic fabric of the nation’s legal system. In it, an agitated Mandelblit is heard referring to his former subordinate, State Prosecutor Shai Nitzan, as a “maniac” (which loosely translates from Hebrew into “asshole”), expressing anxiety that Nitzan wants to “have him by the throat.”
Allies of Netanyahu seized on the recordings as evidence that the attorney-general had been blackmailed by the state attorney, prosecutors and police into filing charges against Netanyahu as part of a “witch hunt” aimed at ousting the premier, but more on that a little later.
Every action produces a similar, but opposite, reaction
At this point, it will suffice to refer readers to a chilling interview on the flagship Channel 2 investigative program “Uvda” (“Fact”), with Judge Hila Gerstel, former commissioner for prosecutorial oversight, who decided to resign her position because of the uncooperative behavior of the State Prosecutor’s Office and its staff. During the interview, Gerstel was asked (min. 17:19): “Do you believe that innocent people are sitting in prison?” A clearly troubled Gerstel replied: “I believe so. Yes. I believe so.”
Of course, it was not that public confidence in the legal establishment was not rapidly eroding long before the Netanyahu indictments.
Indeed, as has been learned from the introductory excerpts, nearly every branch of the country’s law enforcement was tainted by public distrust—whether the judiciary, the prosecution or the police.
However, it seems that in the legal world, much like in nature, every action produces a similar, but opposite, reaction.
Thus, initiating a high-profile case involving criminal proceedings against a sitting prime minister, the intense pressures it created and the inflamed passions it kindled shone an unrelenting spotlight on a system already perceived as gravely malfunctioning—inevitably exposing further blemishes and enhancing the shadow cast by them.
Thus, not only were the charges themselves sharply criticized as unprecedented, unwarranted and unsubstantiated, but the manner in which they were pursued was seen as highly questionable.
A brief reminder
Readers will recall that Netanyahu was indicted on three alleged transgressions—code-named Case 1000, Case 2000, and Case 4000. (Case 3000 relates to allegations of corruption in Israel’s purchase of submarines from Germany, concerning which Netanyahu has not been indicted.)
In a nutshell:
In Case 1000, Netanyahu is accused of receiving an inordinate amount of perishables (champagne and cigars) from well-heeled friends over an extended period of time—although the illicit “quo” for this allegedly egregious “quid” is far from clear—unless some assistance in obtaining a U.S. visa for someone who had contributed much to the security of Israel is deemed unconscionable malfeasance.
In Case 2000, Netanyahu and editor of the mass circulation daily Yediot Aharonot, Arnon Mozes, are accused of illegally conspiring to promote legislation to limit the circulation of a competing paper, Israel Hayom (considered to be pro-Netanyahu), in exchange for more favorable coverage in Yediot Aharonot (generally critical of Netanyahu). Nothing ever came of the alleged plan. The limitations were never legislated, and the favorable coverage of Netanyahu never materialized.
In Case 4000, the allegations are that Netanyahu (who then also held the position of Communications Minister) acted to grant lucrative commercial benefits to media mogul Shaul Elovitch, in exchange for favorable coverage on the Walla! news site, one of the most popular in Israel, which Elovitch owned. In reality, with few exceptions, the Walla! coverage of Netanyahu continued to be negative and the legislation passed that benefited Elovitch was approved by all the relevant professional echelons.
Disturbing developments and a perturbing precedent
The investigation into Netanyahu’s conduct was accompanied by a disconcerting number of disturbing developments.
For example, former State Prosecutor Shai Nitzan, whom Judge Gestel deemed unfit for the position (see opening excerpt) admitted that Netanyahu could not be indicted on the basis of well-established legal practice—and that to indict him, new legal precedents needed to be invoked.
Thus, in a May 8, 2019 interview, Nitzan, then leading the legal action against Netanyahu, 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?”
Nitzan’s stunning, almost self-contradictory response was: “Every legal precedent has to begin at some point. For example, in Case 4000, 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 leaves one to ponder over why, if the decision was in fact unprecedented, how it could possibly not involve widening the charges?
‘Selective prosecution on steroids’
In broad brush strokes, “selective prosecution” is a procedural defense in which a defendant argues that he/she should not be held criminally liable for an alleged transgression, as the criminal justice system discriminated against him/her by choosing to prosecute.
This clearly seems to apply with regard to Case 2000, involving the discussions between Netanyahu and Mozes, owner of Yediot Aharonot. Indeed, not only does it seem more than a little puzzling why any legal action is merited due to meetings that produced no concrete result, or even concrete action towards achieving a result, but there is also the fact that more than 40 other MKs did in fact act to do Mozes’s bidding by voting in accordance with his wishes—while Netanyahu himself actually opposed it!
Indeed, Netanyahu’s opposition to proposed legislation favoring Mozes was one of the major reasons he cited for dissolving his government and calling for elections in 2015. Perversely, no charges have been or will be, filed against the 43 MKs who actually attempted to give Mozes what he asked for, several of whom were given positive coverage in his Yediot Aharonot.
In view of these accumulated factors, it seems difficult to dispute Netanyahu’s exasperated exclamation: “This is selective enforcement on steroids. It’s enforcement just for me.”
Illicit leaks and prosecutorial indifference
A spate of leaks to the media—apparently originating from the police and/or the prosecution—accompanied much of the investigation into Netanyahu’s alleged transgressions. Virtually without exception, the leaks were detrimental to Netanyahu and appeared to be designed to undermine his standing and tarnish his image, with the intent of diminishing public support for him.
As early as January 2019, in the letter to Attorney-General Mandelblit, Netanyahu’s lawyers pointed out that it was not only unfair, but illegal, for law-enforcement personnel to leak details of the investigation into Netanyahu’s cases to the public and the media, citing previous instances in which similar leaks had led to criminal prosecution.
At the same time, Netanyahu himself released a statement on social media. In it, he alleged that “propaganda television channels are brain-washing [viewers] with a constant stream of false and non-contextual leaks from the criminal probes.”
Despite this, the attorney-general and the state prosecutor brushed off allegations that prosecutors, together with police and the media, were exploiting criminal investigations to topple politicians not to their liking. Accordingly, criticism was dismissed as—in the words of Mandelblit—part of a “campaign to cast doubt [on] my work and the prosecution’s work.”
(JNS.org)
Martin Sherman is the founder & executive director of the Israel Institute for Strategic Studies.
