Analyze This: Why Mazuz will soon hold Olmert's fate - and the nation's - in his hands

A-G has broad "prosecutorial discretion" in Olmert's case.

By CALEV BEN-DAVID
mazuz 248.88 (photo credit: Ariel Jerozolimski [file])
mazuz 248.88
(photo credit: Ariel Jerozolimski [file])
Last week, Prime Minister Ehud Olmert laid down a challenge to the criminal justice establishment by announcing that if he is indicted as a result of the latest allegations against him, he will resign from office. The decision on an indictment will ultimately be made by one man - Attorney-General Menahem "Meni" Mazuz. And the attorney-general's decision will be influenced by the evidence against Olmert collected during the current police investigation. Although it all sounds so clear-cut, it's far from that. In fact, Mazuz will be facing a decision that is far from a simple legal determination, one in which what one might call political considerations - in the sense of deciding what is best for this country - will and should play a major factor. Of course it may not come to that, if revelations come to light during the police investigation that are so damaging to Olmert that he is left no choice by his coalition partners but to resign. Don't count on it, though - the PM has made it clear he intends to fight every step of the way, and shrewd lawyer that he is, has already laid the groundwork of his defense by implying that any offenses that may have been committed were the responsibility of his former law partner and confident, Uri Messer. Nor should one look for dramatic gestures in an attempt to force Olmert out of office, either from his most likely successor as Kadima leader, Foreign Minister Tzipi Livni, or senior coalition partner, Defense Minister Ehud Barak of Labor. Having been burned once before by having to backtrack from threats to resign themselves if the PM didn't do so, they will prefer to wait this time for an indictment that would provide them with sufficient ammunition to pressure the Kadima rank-and-file to break decisively with Olmert. Thus the PM's fate, both judicially and politically, will come down to Mazuz's judgment in deciding whether there is sufficient evidence to prove that in accepting hundreds of thousands of dollars from American Jewish businessman Morris Talansky, he broke the law. Deciding exactly what law, if any, the PM violated, will be up to the attorney-general - and that evaluation will determine not only Olmert's fate, but also the timing of it. That's because in our system Mazuz enjoys what is called in American jurisprudence "prosecutorial discretion" - nearly absolute power to decide whether to bring criminal charges, and what charges to bring based on the available evidence. Does the police have a say? Of course - but even though the police has the privilege here of being allowed to make an official recommendation on whether to indict a suspect, the Attorney-General's Office can overrule that suggestion. The most prominent recent example of this involved a case against another prime minister, Binyamin Netanyahu, who in 1997 faced a police recommendation for indictment over his alleged role in the "Bar-On for Hebron" affair, but was spared when then-attorney-general Elyakim Rubinstein decided not to pursue charges against Netanyahu. As Jerusalem Post legal correspondent Dan Izenberg explained in these pages on Sunday, Olmert is most likely to face charges in two areas: accepting bribes or violating campaign finance laws. The first is the more serious, but also the more difficult to prove. That Talansky gave Olmert large sums of money is not in dispute - the PM's defense so far is that these were campaign contributions given within the guidelines of the law. Proving they were bribes would require demonstrating that a quid pro quo was involved in which Olmert provided some kind of service either to Talansky, or to other donors who funneled the money through him. While media reports have already cited one lead involving a Talansky-owned mini-bar business that Olmert may have provided a recommendation for, making any case for bribery is likely to require a lengthy investigation involving the obtaining and examination of business records, securing additional testimony, and the cooperation of US law enforcement authorities. What's more, in certain circumstances Olmert could argue - as he successfully did in the investigation against him for his involvement in the sale of the state's controlling stake in Bank Leumi - that any aid or recommendations he provided to potential investors in the local economy was for the general good of Israeli business interests, and not any political payback. If Talansky, and Messer, as some reports have it, are indeed cooperating to some degree with the police investigation, it will be far easier to determine whether campaign finance laws were violated, if these payments exceeded legal limits, were not given in the authorized time-frame prior to or after elections, or were not properly recorded. The question is whether the police, and especially the attorney-general, would decide to file lesser charges involving campaign contributions, rather than continue to pursue a bribery indictment. One reason they might file lesser charges is that the criminal-justice establishment has been harshly - and not unjustifiably - criticized for conducting lengthy investigations of public figures without coming to a quick enough decision on whether to issue an indictment or close the file. Having already taken the extraordinary step of demanding an snap interrogation of the PM just days before the state's 60th anniversary celebration, and requesting a complete media blackout on details of the investigation, the police will be under exceptionally heavy pressure to deliver a far swifter than usual recommendation to the State Prosecutor's Office. If sufficient proof for an indictment involving campaign-finance malfeasance does comes relatively quick, it will be up to Mazuz to decide whether to move ahead and press these lesser charges rather than wait for evidence of bribery. In this instance, even though he didn't specify what kind of indictment would be sufficient for him to voluntary leave the PM's office, it is not improbable to expect a cornered Olmert to mount a peremptory defense based on the grounds that similar accusations (also backed by evidence) were put forward in the past against prime ministers Barak, Netanyahu, Shimon Peres and Ariel Sharon, and in no prior case did they result in them being charged. This is where Mazuz's prosecutorial discretion - and the courage to use it - will come into play. It is quite common for prosecutors to move forward on a lesser charge, rather than wait for evidence of, or risk proving, more serious allegations. It is also not unknown to bring charges based on evidence that in other cases might not justify seeking maximum penalties under the law, if the violations in question are seen as a pattern of lawbreaking. In other words, would it be right to bring down a prime minister on what may be a relatively minor violation of election laws that other politicians have gotten a pass on? Well, given that this is no less than the fifth police investigation opened against Olmert during his brief term in office, one could also ask if it was justified to bring down Al Capone for the horrible crime of failing to pay his income taxes. In the final reckoning, when it comes time for Mazuz to interpret the available evidence, prosecutorial discretion allows the attorney-general to be guided by a sense of what is best for the sake not just of Ehud Olmert as an individual under Israeli law, but for the good of the country as a whole. If that doesn't quite sound right - if it sounds too "political" - it also well within the bounds of the rule of law as practiced in virtually every democracy in the world. It's also undoubtedly one the factors that guided Mazuz in the aborted plea-bargain deal he cut with former president Moshe Katsav, despite the fact that evidence clearly existed that would have justified the more severe sexual assault charges that will now likely be brought against the former head of state. In the Katsav case, the attorney-general was widely accused of not following the evidence to the fullest, in order to bring closure to a affair that was a painful embarrassment to Israeli society. With the Olmert investigation, the stakes are much higher. And for Meni Mazuz, the exercise of his prosecutorial discretion will surely prove the better part of his valor in ensuring that, one way or the other, this country has more stable leadership at a time it when faces critical security challenges. Calev@jpost.com