Israeli Attorney General Avichai Mandelblit’s announcement to the media, 40 days before general elections, that he intends to indict Prime Minister Benjamin Netanyahu on charges of bribery and breach of trust in three different cases was political drama of the highest order. There’s no gainsaying the importance to Israel’s politics and the election. But more importantly, Mandelblit’s announcement heralds a crisis for Israel’s democracy and the public image of its legal system.
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.
To be sure, Mandelblit’s announcement is only an interim step in the legal drama. Any actual indictment will have to wait for hearings in the attorney general’s office in which Netanyahu’s lawyers will be afforded the opportunity to attempt to dissuade Mandelblit from his chosen course. The hearings will take place after the election, and only in a year or so will Mandelblit be in a position to request that the Knesset lift Netanyahu’s immunity or formally file an indictment. And the political fallout will not end with the opinion polls now being conducted. It is likely that Mandelblit’s announcement will influence not only the number of votes received by the parties on April 9, but the coalition negotiations to follow.
Yet, while the ultimate political fallout remains unclear, 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. Professor Alan Dershowitz said as much in several op-eds and an open letter to Mandelblit in recent months, and he is absolutely right.
A closer look at the three cases—known in Israel by their file numbers 1000, 2000 and 4000—in which Mandelblit hopes to file charges illustrates the point.
Case 1000 involves repeated small gifts to the prime minister—primarily cigars and champagne—from Arnon Milchan and other affluent supporters of Israel over more than a decade, and the provision by Netanyahu of assistance on the level of constituent service. The police had sought a bribery charge, but Mandelblit seeks to charge Netanyahu with “breach of trust,” a notoriously vaguely defined crime.
As Dershowitz wrote, “Everyone acknowledges that friends are permitted to give wine and cigars to friends, even if the recipient is the prime minister. The accusation is that Netanyahu took too many such gifts and made too many favors in return. But how many are too many? The law doesn’t say. It’s a matter of degree. But matters of degree should not be the basis for criminal prosecutions …. No one should be charged with a crime unless he has willfully crossed a bright line and plainly violated a serious criminal statute. To bring down a duly elected prime minister on the basis of an expansive and unprecedented application of a broad and expandable criminal statute endangers democracy.”
It does not help Mandelblit’s case that Milchan and the others have befriended and asked favors of many Israeli politicians over the years. In an interview in 2013, Milchan proudly counted among his friends former Prime Ministers Ehud Olmert, Ariel Sharon, and Shimon Peres, and senior Israeli politicians Tzipi Livni, Avigdor Lieberman, and Silvan Shalom, as well as Netanyahu’s rival Yair Lapid (who would become prime minister in a rotation agreement, were his Blue and White party to win the coming elections), as well as, of course, Netanyahu. The main favor Milchan requested—an extension of an existing tax break for new immigrants and returning Israelis—is one that Milchan discussed with Lapid and which Lapid initially supported. No charges have been or will be filed against Lapid or Milchan.
Cases 2000 and 4000 are even more troubling, as both depend on the idea that positive media coverage of public officials is a currency, like coin, that can turn into bribery when in exchange for policies or decisions. In both cases, Netanyahu is charged with crimes for seeking more favorable coverage from traditionally hostile media outlets in exchange for lawful regulatory action.
Case 2000 involves discussions between Netanyahu and Noni Mozes, the publisher of the Yediot Ahronot newspaper. Mozes, who makes no secret of the heavy hand he uses in his newspaper and publishing empire to support favored causes and politicians, sought a law that would cripple a rival newspaper—Sheldon Adelson’s Yisrael Hayom—and he was willing to reduce his traditional hostility to Netanyahu if the prime minister would help. Netanyahu agreed to explore the possibility, though Mozes ultimately had to work without the prime minister. Mozes’ proposed law, which would have outlawed Yisrael Hayom, was opposed by Netanyahu, but supported by f43 members of Knesset. Mandelblit seeks to charge Mozes with bribery and Netanyahu with breach of trust. No charges have been or will be filed against the 43 members of Knesset who actually gave Mozes what he asked for.
Case 4000 revolves around discussions between Netanyahu and senior management of Bezeq, a telephone company that owns Walla, the internet news site. Netanyahu pressed Bezeq management to dial down Walla’s hostility at the same time as Bezeq was being scrutinized by civil servants for a merger with the cable company Yes that was ultimately approved. Mandelblit claims that accepting the better coverage from Walla constitutes the acceptance of bribes.
Dershowitz correctly observes, “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. Many votes by politicians are designed, in part—whether consciously or unconsciously—to garner favorable coverage from the media and to achieve other self-serving results. In many cases, a piece published by a reporter, editor or publisher is also calculated to some degree to promote self-interest—whether economic, political or career-related. To empower prosecutors to probe these mixed motivations is to empower them to exercise undemocratic control over crucial institutions of democracy.”
Indeed, the clearest recent case of quid pro quo coverage in recent Israeli political history involved not Netanyahu but one of his predecessors. Israeli journalist Amnon Abramovich famously called on his fellow journalists to treat Ariel Sharon “like an etrog”—i.e., to give him kid glove treatment—so long as Sharon moved forward with his plan to withdraw unilaterally from the Gaza Strip. The etrog treatment has been widely invoked since, and, indeed, some journalists have publicly mulled granting Netanyahu etrog treatment in exchange for more dovish policies toward the PLO. Until the police and Mandelblit announced their approach to cases 2000 and 4000, no one suspected that etrog treatment was felonious.
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.
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. 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 interrogation rooms in police stations.
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.” 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.
There’s ample evidence for both interpretations of the prosecution—neutral and partisan—but it doesn’t really matter which is right: Both indicate a severe crisis in Israel’s democratic governance.
We can only hope that the attorney general’s office reconsiders its course. But I fear that much of the damage has already been done, and it will take many years for Israel’s democracy to recover.
Avi Bell is a Professor of Law at Bar Ilan University and the University of San Diego, a Senior Fellow at the Kohelet Policy Forum, and a Visiting Fellow at Harvard Law School’s Project on the Foundations of Private Law.