Prime Minister Netanyahu’s official request for a pardon from President Herzog - which would immediately end his show trials - has not unexpectedly unleashed a typical storm from leftists whose sole purpose in life for the last fifteen years, it seems, has been to topple him from office. But it has also provoked some opposition from Netanyahu’s supporters, and for legitimate reasons.
A pardon would provide some measure of finality to the absurdity that has pursued the PM for over a decade, with his indictment already six years old and his trial not scheduled to end for several more years. Even if he was not the head of government having weightier issues on his plate, the prolonged trial is a form of Chinese water torture designed not to elicit the truth (no trial is) or justice (presumably the goal) but rather to harass him out of office and to break him psychologically. To his credit, all that has failed.
On balance, a pardon would be better for Israel as a country than for Netanyahu as a person. For the country, it would end at least one legal farce of the many that have exposed the abominable corruption of the judicial establishment (civilian and military), the police investigators, and the courts at the highest level.
It would, however, deprive us of the truth of how various individuals have created an unaccountable and undemocratic fiefdom that effectively rules the country and can intimidate objectors into silence. These include the Government’s putative “Legal Advisors” who act as a law unto themselves and aggregate power they do not have and are shielded in their usurpation of democracy by the Supreme Court which similarly perceives itself as unbounded and unfettered by anything other than their self-serving construction of what a secular Israel needs.
Add to them prosecutors and police investigators who have been credibly accused of fabricating evidence, inventing crimes, and then taking refuge in the fortress wall of silence that protects the establishment.
We now know that the prosecutors even went as far as badgering and threatening Netanyahu’s closest staff into offering them “anything criminal against him, anything,” any negative information at all, desperate as they were to indict him for something and so tie him up in legal knots that he could not run for office and win. The interminable investigation against the PM was more than a fishing expedition; it was corroboration of the Communist police chief Lavrentiy Beria’s boast to Stalin, “give me the man, and I will find the crime.”
For Netanyahu, the grant of a pardon lacks a full expression of justice, although it does spare him the expenses of an ongoing trial as well as enables him to focus on the affairs of state for which he has been repeatedly elected. It would be used as election propaganda against him.
He would not earn the vindication against the accusations of his tormentors that he would through a complete acquittal. However, it is highly implausible that the court - a tool of the judicial oligarchy that is one of the two last refuges of secular Israel (the other being the mainstream media) - will not convict him on some count of the indictment, such as the amorphous “breach of trust.” All that takes is conviction on any count by two of the PM’s three judges eager to vindicate the judicial establishment and keen on advancing their careers beyond the District Court level.
It is true that no person is above the law but no person should be under it either - the victim of a targeted prosecution aimed at manipulating the politics of the country. In most of the civilized world, indeed, prosecutions of the head of government cannot take place while the leader is serving; such distracts from his primary tasks and harms the nation itself. That is why Trump was prosecuted when he was out of office - and all his cases pending when he won election were dismissed “in the interest of justice.”
The indictment of a sitting prime minister - even where a country’s laws do not preclude that - should reflect grave offenses that affect the common weal and that are morally intolerable. Netanyahu’s indictment does not come close to that threshold of seriousness. Essentially, he is accused of several quid pro quos, in which neither the quid nor the quo occurred or mattered.
Beyond hiding the crimes of the left, a pardon would unduly strengthen Donald Trump who inappropriately and (typically) brazenly demanded it in public from Israel’s President. Trump, for whom everything is transactional, will want something down the road from Netanyahu that will not be in our interest, some concession that will facilitate another “deal,” whether of the century, the millennium, or the inevitably forthcoming “deal of eternity.” Although Netanyahu has stood up to pressure before.
For Israel as a country, a pardon would remove one of the thorniest elements of national discord, even as it would in the short term enrage the perennial protesters who have been protesting against Netanyahu for as long as Netanyahu has been winning elections. It will not be an easy call for President Herzog, deeply embedded on the left and (who knows?) young enough to still be harboring political ambitions in the future. A pardon would infuriate and even obliterate Herzog’s potential base. His forthcoming decision will captivate Israelis for the next several months.
Herzog might try to split the difference - pardon the PM if he admits guilt to something, agrees to leave politics, or the like. None of that is reasonable, and if either of that was to happen, it could have happened years ago and spared us (and Netanyahu) the embarrassment of the incessant legal circus in which he has been center ring. Herzog may then assert that he tried - but Netanyahu (rightly) refused. That would be an abdication of Herzog’s responsibilities.
Rather than be guided by personal or populist sentiments, President Herzog should look to two pardon precedents.
The first is the Bus 300 affair from 1984, in which four Arab terrorists of an Egged bus en route to Ashkelon hijacked that bus with the intention of taking hostages its passengers and bringing them to Gaza. (“There is nothing new under the sun,” said King Shlomo.) Two terrorists were killed in a shootout near the Gaza city of Deir-el-Balah, and two were captured alive, interrogated, and then executed by the Shin Bet.
No one would have shed a tear or been any wiser but for an infamous photograph that appeared in a newspaper Hadashot, published in defiance of the military censor through the New York Times, which showed one terrorist very much alive and walking, just a few minutes before he wasn’t.
A scandal ensued (In 1985, a senior Israeli army general, who led the assault on the bus, Yitzhak Mordechai, was acquitted of charges that he had killed the terrorists after his name was smeared for months. Later, it emerged that members of Shin Bet, Israel's internal security service, had killed them and given false testimony, implicating Mordechai on purpose, ed.). This ended several years later with no convictions of anyone involved, the resignations of the heads of the Shin Bet and the Attorney General, and pardons for all, including the Shin Bet agents responsible for the deaths of the terrorists in custody.
It was President Chaim Herzog, father of our current president, who pardoned the offenders, after they were indicted but before they were tried, and all in the interests of justice and national security. None of the people charged admitted to any wrongdoing. Some of those involved later served as Cabinet Ministers and Knesset members.
The second, perhaps even more instructive and controversial case, was Gerald Ford’s 1974 pardon of Richard Nixon for all crimes related to Watergate (formally: for “all offenses… Richard Nixon has committed or may have committed” while he was president), exactly one month after Ford became President. Naturally, this unleashed a firestorm of angry protests from Nixon’s numerous, permanent, and irate enemies. Ford did it because, as he said, it was the right thing for the country. If Nixon were indicted, then, during the pendency of his case and even after, “ugly passions would again be aroused. And our people would again be polarized in their opinions. And the credibility of our free institutions of government would again be challenged at home and abroad.
Ford continued: “My conscience tells me clearly and certainly that I cannot prolong the bad dreams that continue to reopen a chapter that is closed. My conscience tells me that only I, as President, have the constitutional power to firmly shut and seal this book. My conscience tells me it is my duty, not merely to proclaim domestic tranquility but to use every means that I have to ensure it. I do believe that the buck stops here, that I cannot rely upon public opinion polls to tell me what is right. I do believe that right makes might and that if I am wrong, ten angels swearing I was right would make no difference. I do believe, with all my heart and mind and spirit, that I, not as President but as a humble servant of God, will receive justice without mercy if I fail to show mercy.”
Was Ford’s pardon of Nixon the right thing to do? Well, it polarized the United States, impaired Ford’s ability to govern, weakened his presidency, and arguably cost him the election in 1976. Yet, in 2001, the Kennedy family bestowed upon Gerald Ford its “Profile in Courage” award, with Senator Ted Kennedy, a fierce opponent of the pardon when it happened, declaiming that history had proven that Ford was correct in his decision.
It is worth noting that Nixon would have been charged with obstruction of justice, abuse of office, and other crimes, all of which related to the conduct of his presidency. Guilty or not, at least the charges would have related to something of substance, crimes, moral offenses, corruption, misuse of the presidency. Compare that to cigars, champagne, favorable media coverage (every politician’s dream), and we realize the surreal nightmare in which Netanyahu, and the people of Israel, have been immersed for many years now because of his political enemies and a justice system, which, far from being the world’s “gold standard,” has run amok, gone off the rails, and is not at all “a light unto the nations.”
Is this President Herzog a profile in courage? We shall find out.
Rabbi Steven Pruzansky, Esq. was a pulpit rabbi and attorney in the United States and now lives in Israel where he teaches Torah in Modiin, serves as the Senior Research Associate for the Jerusalem Center for Applied Policy and as the Israel Region Vice-President of the Coalition for Jewish Values, and is the author of the two volume Chumash commentary “The Jewish Ethic of Personal Responsibility” (Gefen Publishing).