No moral turpitude for former prime minister Ehud Olmert – for now.
was the shocking last-minute twist in Wednesday’s sentencing hearing in the
Olmert corruption trial.
The legal war machines were revved up, guns
(bombastic lawyerly rhetoric) ready to blaze, bombs (legal precedents) ready to
drop, troops (lawyers) ready to do battle.
Then it all evaporated with a
The pre-game show had foreshadowed another all-out
no-holds-barred battle between the former prime minister’s legal team and the
state attorney, who do not like each other.
Letters and overwrought
metaphors of improper conduct were flying between the two sides on Tuesday, the
eve of the hearing.
Olmert’s lead attorney, Eli Zohar – who depending how
this turns out could also be nicknamed “the magician” – struck preemptively,
telling the state through the press that it did not need to seek a finding of
moral turpitude, because Olmert was ready to waive all of his public benefits as
a former prime minister.
Just as suddenly the state shot back that it was
immovable on the issue. It would not relent under any circumstances from seeking
the finding since the only thing that mattered was that Olmert’s actions
fulfilled the elements of moral turpitude.
That was until this morning
when the state relented.
What changed overnight, legally speaking?
What changed in that X factor surrounding high-level
litigations, like those involving a former prime minister, was that the state
got over its knee-jerk reaction of being shown up publicly and realized it had
If it pushed forward with seeking moral turpitude it
might be walking into a trap, running smack into one of cardinal principles of
Judges are not supposed to – and by nature heavily dislike to – make
a theoretical finding that has no concrete impact on the real
There are only two possible practical consequences of a finding of
moral turpitude: losing previously earned public servant benefits and being
barred from running for office for seven years.
Olmert said he would give
up the benefits and... he is already out of office. Maybe he’ll run in the
future. But he hasn’t announced any intention to run now and there aren’t even
elections happening now for which he could run.
This was the roadblock
for the state. They would be asking judges to make a dramatic and controversial
finding against a former prime minister, which has never happened before, with
absolutely no concrete impact at the moment.
The state realized that
judges who might rule for it if there was a concrete situation, might very well
choose not to under these circumstances.
And then down the road if Olmert
ran for office, the ruling would already be final.
But the state has
already been thoroughly embarrassed in this case, and needed at least a finding
of moral turpitude to justify having toppled a former prime minister.
in the late hours of Tuesday night the state looked for a third way
It will maintain that it can ask for a finding of moral turpitude if
Olmert should try to run for office down the road.
How it will do that is
Some of it depends on whether he is given any other punishments,
such as community service, and if some kind of unusual language is put into the
sentencing order that leaves the issue of moral turpitude open, but even that is
In theory, if Olmert ever tried to return, there are at
least three ways the state could try to raise the issue in the
The most likely scenario would be that the issue could be
considered by the electoral commission, which could prevent him from running
with its own finding of moral turpitude or by seeking a ruling from the
Second, in theory, both the attorney-general and the district
court on its own can reinitiate a court proceeding over the issue of moral
turpitude for a member of Knesset, where no finding was originally
Olmert is not currently in the Knesset, but he was at the time of
crimes for which he was convicted.
Finally, although there is no specific
rule to this effect, there is the time-honored tradition of asking the High
Court of Justice to intervene on just about anything.
But all of these
potential roadblocks for an Olmert comeback are much better for him than
fighting the battle in front of the court that convicted him, even if the “only”
rulings it issued against him were a conviction of breaching the public trust
and saying his conduct was improper.
From the monotone reading of the
verdict in July and the absence of the kind of scathing criticism that the judge
threw globally at Olmert and other defendants at the presentation of the
Holyland indictment, Olmert might have beaten the moral turpitude argument
But now he has guaranteed that the issue, if it ever comes up,
will come up at the time of his choosing – when he decides to
Moreover, he would likely only make a comeback if he beats the
Holyland charges and after a public relations campaign crowning him as the
returned hero who was wrongfully dethroned.
How quickly is the electoral
commission, whoever is attorney-general at that point (who does not have the
baggage of having to justify pushing Olmert out of office), the district court
or even the High Court going to want to get in the way of that locomotive as it
builds speed? How quickly when they would be asked to do something that,
although permitted, is not standard procedure? (Moral turpitude is usually
decided in the sentencing order because in most cases, the accused is still a
public servant or is looking to make an immediate comeback like Tzachi Hanegbi.)
Even if the issue is debated, any of those legal bodies can ask the state: why
didn’t you seek moral turpitude at the sentencing? That is the best time to
decide these matters. You can’t rewind the clock now, the state might be
That is the best case scenario that the state has been able to pull
out for itself from Zohar’s magical legal ambush. And for that he – or Olmert,
if he beats every case against him – may earn the nickname “magician.”
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