Netanyahu's supporters demonstrate outside of trial
Netanyahu's supporters demonstrate outside of trialYonatan Sindel/Flash90

We have a prime minister mired up to his neck in investigations. He has no public or moral mandate to determine matters of such crucial importance for the State of Israel. There is concern—which I must say, is real and not unfounded—that he will make decisions based on his own self-interest of political survival, and not on that of the national interest...because he is in such profoundly deep distress—Benjamin Netanyahu, Channel 2 News, 2008.

Q: 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?

A: Every legal precedent has to begin at some point. So, just because it involves the prime minister, we should delay the precedent for another time? Shai Nitzan, Israel’s State Prosecutor, who headed the Netanyahu criminal probe, on the decision to indict PM Benjamin Netanyahu for bribery, on unprecedented charges, in answer to interview question May 8, 2019.

...we’re seeing the weaponization of criminal justice for political purposes... Alan Dershowitz, professor emeritus, Harvard Law School, on the Netanyahu investigation, November 18, 2019

There is not enough proof of a criminal offense. I think it is very dangerous to start indicting people based on negotiations with newspapers. That’s what politicians do...To start interfering in the relationship between media and the government poses a tremendous danger to free speech democracy, Alan Dershowitz, December 27, 2018 .

The Netanyahu trial is once again underway, as the prosecution slowly works its way through its 300-long list of witnesses. It might yet be early days, but so far, they hardly seemed to have made a compelling case for conviction.

More inappropriate than an indicted candidate

However, in the echo chamber of the overwhelmingly Bibi-phobic mainstream media, much has been made of Netanyahu’s 2008 demand that then-incumbent PM, Ehud Olmert, resign (see introductory excerpt)—because of his legal predicament.

Ostensibly, this creates an understandably awkward situation for Netanyahu, exposing him to charges of blatant hypocrisy and double standards—and provides grist for the mill of those wishing to introduce legislation barring anyone, who has been criminally indicted, from running for prime minister.

Clearly, this is not a demand that can—apriori—be dismissed as totally unreasonable. After all, who would not recoil at the prospect of anyone, under a credible indictment of rape, murder, arson, assault, or armed robbery, presenting his candidacy for the premiership and possibly becoming the elected leader of the nation.

So, understandably, while for many it may seem inappropriate that an individual under criminal indictment be permitted to run for, or hold the office of, prime minister, it is far more inappropriate that he/she be precluded/removed from office by abuse and distortion of the legal system.

All this ought to be born in mind by anyone trying to draw any equivalence between the case of Ehud Olmert, and that of Netanyahu.

Comparing chalk & cheese

As readers will doubtless recall, Olmert, who served as Israel’s Prime Minister from 2006 to 2009, was imprisoned for 16 months after being found guilty of bribery and obstruction of justice, offenses related to his term as mayor of Jerusalem and as minister of industry and trade.

However, in stark contrast to Netanyahu, Olmert was indicted—and convicted on the basis of the prevailing interpretation of the law! No “creative” legal precedents were needed to be invoked to prosecute him. With Olmert, there were no claims of selective prosecution, complaints of extortive coercion of state witnesses, or allegations of investigative misconduct by the police. Moreover, Olmert was strongly pressured by members of both his party and his coalition partners to resign. Netanyahu, on the other hand, enjoys overwhelming support as leader of his Likud party and unequivocal approval of numerous like-minded Knesset factions.

But perhaps the starkest difference—and arguably the most compelling in terms of the foundations of democratic governance—is the massive difference in support the two men had from the Israeli public.

Indeed, public support for Olmert was beginning to crater even before the full impact of his legal woes took effect. Thus, in early 2007, his favorability was in single digits—with one poll putting it as low as 3%. By mid-2008, 70% of the public “thought he should go.”

Despite anti-Bibi bile

With Netanyahu, the picture is dramatically different!

Despite being saturated with toxic Bibiphobic bile and force-fed with anti-Netanyahu venom by much the mainstream media, the public’s support for him soared, making him by far the most popular politician in Israel—even though his indictment was well known, and thus, already discounted in the figures for his immense popularity. Indeed, recent polls see a Netanyahu-led Likud as easily the biggest party, with up to 36 Knesset seats, almost double its nearest rival, and dwarfing all the other factions, almost none of whom reach a double-digit tally of seats.

In terms of personal stature with the electorate, Netanyahu outstripped all his competitors for the individual most qualified to serve as prime minister by huge margins—according to some polls, by more than double his nearest rival, Yair Lapid, and more than quadruple the current incumbent, Naftali Bennett.

It is important to reiterate here that this sustained popularity endured in spite of the fact that the criminal proceedings against Netanyahu were well underway and the substance of the accusations against him was widely known common knowledge—which in itself seems to constitute a grave public indictment of the nation’s legal system and a grim picture of the credence the public accredits it.

Weaponizing the legal system for partisan political purposes

But apart from the ringing post-indictment public endorsement of Netanyahu, there are other factors that set the Olmert and Netanyahu cases apart.

For example, while in the Olmert case, there are no allegations of selective enforcement, in which similar violations by others were left unindicted, this is far from true with Netanyahu. Indeed, in his case, there is perturbing and persuasive evidence of selective enforcement, in which dozens of incumbent politicians undertook identical—or at least, very similar–pursuit of favorable coverage with nary an indictment being filed against any of them.

Another feature, which underscores the qualitative chasm between the cases of Olmert and Netanyahu touches on how the police probes were conducted and how prosecutory evidence was collected.

With Olmert, there were no significant instances of police investigative misconduct or malign mistreatment of witnesses. Indeed, in Olmert’s case, the two major prosecution witnesses, who played a major part in bringing about his conviction, came forward of their own volition. The one, died before the trial ended, the other, Olmert's longtime personal assistant, volunteered testimony against him—after she felt abandoned by him and signed a plea bargain for a reduced sentence for her involvement in Olmert-related offenses.

With Netanyahu, the situation differed drastically. Indeed, arguably even more troubling than the allegations of selective enforcement are persistent reports of police misconduct and mistreatment, and extortion of witnesses to obtain incriminating statements against Netanyahu and other co-defendants.

Thus, Netanyahu-associates, originally stoutly supportive of him, were reportedly coerced into becoming state witnesses for the prosecution after police compelled an incarcerated interrogatee to sleep on a flea-infested mattress, threatened to reveal an extramarital affair to a detainee’s spouse, and attempted to enlist the son of a co-defendant to persuade his father to fire his attorney and hire a more compliant one.

Ill-begotten & ill-conceived

But perhaps the most substantial and far-reaching difference between the legal sagas of Olmert and Netanyahu is the impact each one is likely to have on the Israeli legal establishment and its enforcement agencies.

Thus, while in Olmert’s case, the investigations, the trial, and the conviction of the relatively unpopular prime minister did not stir up a significantly negative impact on the credence and reputation of the bodies involved in the police investigation, in the resultant indictment, and in the consequent conviction, this is highly unlikely to be so in Netanyahu’s case.

After all, if he is forced to step down under the weight of what is perceived by many—both professional jurists and concerned laymen—“dubious” (to be charitable) indictments, this could well result in a severe blow to the fabric of Israeli democracy.

For it will demonstrate that any democratically elected leader—no matter how popular with the electorate or how impressive his achievements—can be deposed by the vindictive whims of a politically adversarial civil society elite—and the (ab)use of its unelected position of power and privilege—to circumvent the will of the people.

Indeed, one thing is beyond doubt: No good result can come out of these ill-begotten and ill-conceived indictments.

If Netanyahu is found guilty, roughly half the Israeli public will feel that there has been a gross miscarriage of justice—and the already tenuous public trust in Israel’s system of law and order will be eroded even further.

On the other hand, if he is acquitted, roughly half (the other half) of the Israeli public will feel that there has been a gross miscarriage of justice—and the already tenuous faith in Israel’s system of law and order will be denuded even further.

Among the biggest losers will be those who launched this reckless and needless initiative in the first place.

Regrettably, the public mistrust, which it will generate in them, will certainly be richly deserved. 

Martin Sherman is the founder & executive director of the Israel Institute for Strategic Studies