INTO THE FRAY: Israel's legal establishment - merited mistrust? 
INTO THE FRAY: Israel's legal establishment - merited mistrust?

“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  

Sed quis custodiet ipsos custodes? (But who will guard the guardians themselves?) - Juvenal, a Roman poet (circa 55 CE- circa 127 CE), Satire VI, line 347.

Public trust in the police – the lowest in the West…only 22% of Israelis believe that judges don’t take bribesHaaretz, Oct. 31, 2011.

Public approval of the police at all time low – below all other public servicesHaaretz, July 7, 2013. 

Last Thursday (Nov. 21, 2019), Attorney-General Avichai Mandelblit dropped a long-awaited bombshell on Israel’s political system. 

Emotions erupt

After months of speculation, he announced his intent to indict Prime Minister Benjamin Netanyahu for bribery, fraud and breach of trust in Case 4000 (the Bezeq-Walla Affair); for breach of trust in Case 1000 (the Illegal Gifts Affair); and for breach of trust in Case 2000 (the Yediot Aharonot-Israel Hayom Affair). 

The announcement ignited an eruption of divergent public emotions. The Bibiphobes applauded it with undisguised glee, the Bibiphiles rejected it with unmasked abhorrence. 

Netanyahu himself lambasted the decision. After a bland statement expressing generic “respect” for “the legal authorities”, he launched a bitter attack against specific sectors of those same authorities: “…you have to be blind not to see that something bad has happened to the police investigators and to the people in the State Attorney's Office.” 

Continuing his condemnation, he alleged: "We are witnessing an attempted coup against a prime minister on trumped-up charges and a tainted and tendentious investigation process…They didn't pursue the truth; they pursued me." 

According to Netanyahu: “[The} tainted investigation process, including inventing new crimes, has reached its apex today. It horrifies not only me, but masses of citizens in Israel, and not only on the right…This tainted process raises questions among the public about the police’s investigations and the prosecution. The public has lost trust in these institutions…This is selective enforcement on steroids. It’s enforcement just for me.”

Similar sentiments 

I confess that I find that Netanyahu’s words of censure resonate with me. 

Indeed, over the past two years I have expressed similar sentiments myself. For example, in February 2018, I wrote a piece entitled Coup d'etat, in which I warned : “If he is … forced out of office, many will see this as naked politicization of law enforcement in the country, in effect, a legalistic coup d’état, designed to annul the outcome of elections — and will deal a mortal blow to their faith in the democratic process”.

Shortly thereafter, in The police, the press and a politicized “Putsch”?, I wrote: “The unrelenting drive to bring an indictment — any indictment — against Netanyahu has long exceeded the bounds of reasonable law enforcement”.

In March this year, in Will the “Deep-State” destroy democracy, I cited the prominent legal expert, Prof Alan Dershowitz, who sharply criticized the legal action against Netanyahu: “ 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…”

Earlier this month, in Democracy devoid of the demos?, I recalled the warning articulated by former Justice Minister, ‘Tommy’ Lapid (father of MK Yair Lapid of the Blue & White faction) : “…the legal system in Israel is being undermined by an over-zealous State Prosecutor’s Office, that is losing esteem and credibility with each additional trial…”; while the current Justice Minister expressed concern over a “dangerous symbiosis between elements in the police Major Crimes Unit, the State Prosecutor’s Office and the media”.

Understandable uproar 

The hullabaloo is not difficult to understand.

Indeed, for the layman, the indictments appear to be uncompelling—to say the least.

After all, as I have written elsewhere, to “anyone but a rabid “Bibiphobe”, they appear transparently contrived, indeed, a thinly veiled attempt at a legalistic coup…creating a deep sense of unease that Israel’s legal establishment is being exploited for patent political ends — i.e. that unelected elites are using their positions of influence and authority to bring about political outcomes that do not correspond to — even contradict — the election results, depleting the influence of the demos in Israeli democracy.”

With regard to Case 1000, it is a little difficult to grasp why gifts of perishable goods from well-heeled acquaintances, even if inappropriately excessive, should be grounds for removing an incumbent prime minister from office. Indeed, even if punitive measures are called for, it would seem far more appropriate to impose administrative measures such as monetary penalties, rather than criminal ones. 

With regards to Case 2000 involving a discussion between Netanyahu and Arnon Mozes, owner of Yediot Aharonot, it seems more than a little puzzling as to why any legal action is merited because of a meeting that produced no concrete result or even concrete action towards achieving that result—especially when over 40 other MKs did in fact act to do Mozes’s bidding , while Netanyahu opposed it! Perversely, no charges have been, or will be, filed against the 43 members of Knesset, who actually attempted to give Mozes what he asked for.

Case 4000 is a little more abstruse, involving Netanyahu’s actions in his role of Minister of Communications, and in which he is alleged to have bestowed on Shaul Elovitch, owner of the popular Walla channel, commercial benefits in exchange for improved coverage of Netanyahu and his family. However, not only did Netanyahu’s actions fall well within the bounds of his role as Minister of Communications, but as Caroline Glick and Alex Traiman point out, nowhere in the democratic world, has any prosecutor ever indicted – or even investigated – a politician or media organization of having committed bribery for providing positive coverage—even when such coverage came in direct exchange for legislation.


Puzzling precedent 

A layman’s puzzlement might well by increased by the fact that the State Prosecution has 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.

This emerges clearly from an interview (May 8, 2019) with Shai Nitzan, the State Prosecutor, leading the legal action against Netanyahu. 

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 leaves one to ponder over why, if the decision was in fact unprecedented, how could it possibly not involve widening the charges?

Bursting the bubble?

Significantly, grave questions have been raised over the functioning of the State Prosecutor’s Office, in general, and of the State Prosecutor Nitzan, in particular—by none other than the person appointed to oversee them—retired Judge Hila Gerstel, who resigned from her role as Commissioner for Prosecutorial Oversight—after an acrimonious relationship with the State Prosecutor’s Office.

In an interview in the business daily, The Marker (owned by the far-left Haaretz), headlined There is something sick in the State Prosecutor’s Office; Shai Nitzan is not fit to be the State Prosecutor, Gerstel was sharply critical of both.

Asked how she felt about what she had experienced as Prosecutorial Oversight Commissioner, she replied: “As if the bubble, in which I had lived for 24 years, had burst. I believed that there were systems that worked properly in the country and I discovered that the particular system, which I was appointed to inspect, was not functioning as it should.” 

Gerstel admitted that, despite the fact that her fellow judges warned her that she did not know what she was getting into, she believed that the State Prosecutor’s Office was a body of honest diligent people, which focused exclusively on the public interest and were not willing to “cut corners” . Later, however, this changed: “We got the feeling that no-one cared about the system.” 

As for Shai Nitzan, Gerstel was brusque and harsh: “In the contacts between us there were several times I got the impression that there was a problem with him being precise and truthful. I believe that the State Prosecutor must be a manager and a leader. This was not what I discovered. There is no leadership in the State Prosecutor’s Office.” 

In response to the question whether Shai Nitzan should be State Prosecutor, she answered bluntly: “According to my criteria: No. From my knowledge of him: No.”

Experts excoriate

The profound sense of unease, which all the preceding accumulation of troubling question marks generates, is heightened by the fact that an impressive battery of internationally renowned legal experts has excoriated the legal action against Netanyahu—in no uncertain terms.

Thus, in a detailed critique in Tablet Magazine, Prof. Avi Bell warned: “Mandelblit’s announcement inserts law enforcement officials into the political arena in an unprecedented way, and on a very shaky legal foundation. If the legal theories that the attorney general is introducing against Netanyahu become general law, a considerable part of the democratic life of Israel will have to pass through police interrogation rooms. If they remain restricted to Netanyahu, the partisanship will permanently damage public trust in the Israeli legal system.”

According to Bell: “…the danger in the novel legal theories introduced by 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.”

Prof. Alan Dershowitz, who has written several critical op-eds and an open letter to Mandelblit, calling on him to drop the indictments, warned that “we’re seeing the weaponization of criminal justice for political purposes.”

According to Deshowitz: “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…To empower prosecutors to probe these mixed motivations is to empower them to exercise undemocratic control over crucial institutions of democracy.”

Capacious crimes? 

Prof. Bell concludes his Table Magazine critique in dour tones: “The dispiriting truth is that there have always been two ways to understand the investigations against Netanyahu, and the implications for Israeli democracy are alarming.”

According to Bell: “One way to look at the investigation is as a neutral application of a new understanding of the traditional crimes of bribery and breach of public trust. Under this interpretation, Mandelblit’s capacious understanding of the crimes of breach of trust and bribery may be unprecedented, but will now be applied across the board to all public officials and politicians. The horrifying result will be police oversight of nearly all interactions between media and public officials.”

Underscoring the absurdity of the situation likely to arise, Bell points out: “When the evening news devotes 15 minutes of generally positive coverage to Benny Gantz or to Mandelblit himself, producers and reporters may have to expect a summons to a police interrogation where they will be asked to demonstrate the purity of their motives. Politicians and public officials in constant touch with the media—that is, everyone in public life—will always find themselves on the verge of conviction of the felony of taking bribes, or, at least, ‘breach of public trust’. The center of Israeli political life will move to [police] interrogation rooms ….” 

As Bell explains: “The other interpretation is that the investigations should be seen as Netanyahu and his supporters paint them: special rules that are meant to apply only to Netanyahu. Israeli political life will not move to the police station, but will face the constant threat that law enforcement authorities may suddenly decide to apply “Bibi rules.”

He warns sternly: “The harm to Israeli democracy of double standards in the criminal law based on prosecutor’s will would be incalculable. And law enforcement officials could never be seen as nonpartisan again.”

Contrived criminality

It was Dershowitz who astutely remarked: “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…If you couldn’t get the Knesset to pass as law criminalizing this, you shouldn’t be punishing it.” 

One thing is beyond doubt: No good result can come out of these 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 arms of law and order with be undermined even further. 

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

Among the biggest losers will be those who launched this ill-considered initiative in the first place. The mistrust it will generate in them, will be certainly be well merited. 

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