Rule Of Law: Judgment time for Liberman

Former foreign minister’s fate is likely to be decided by the thinnest margin when he finally returns to court next week to face fate on charges of fraud, breach of public trust.

By YONAH JEREMY BOB
Liberman in court 370 (photo credit: Emil Salman/Pool)
Liberman in court 370
(photo credit: Emil Salman/Pool)
Since December 2012 and even before, the entire Israeli political system has been on pause to learn the fate of one man, Avigdor Liberman, who has been one of its dominant forces for over a decade.
On November 6, a three-judge panel of the Jerusalem Magistrate’s Court will decide his fate on charges of fraud and breach of public trust.
If he is found innocent, predictions are that his popularity will be further boosted, he will immediately return to the post of foreign minister, and he will be among the first in line to succeed Prime Minister Binyamin Netanyahu as leader of the country’s right wing.
If he is convicted with a finding of moral turpitude, his resignation as foreign minister will be made permanent, he will be forced to resign from the Knesset, and he will be banned from public life for seven years.
In addition, predictions have been rampant that if he is convicted, his Yisrael Beytenu party, built largely around his personality, will implode and a complete realignment of the political field will occur, with a line-up of parties competing to gain the loyalties of his constituents.
Whether he is found innocent or convicted will also significantly impact to what extent the Likud and Yisrael Beytenu maintain their pre-election alliance.
How will Judges Hagit Mack-Kalmanovitz, Yitzhak Shimoni and Eitan Kornhauser come out on the case? The key facts alleged by the prosecution are as follows: First, in October 2008, Ambassador to Belarus Ze’ev Ben-Aryeh gave Liberman a note with information about a state investigation into money-laundering allegations against him, discussing the case with him for three to five minutes.
Next, the prosecution says Liberman destroyed the note, failed to report Ben-Aryeh and then helped him procure promotions in the Foreign Ministry.
After that, Ben-Aryeh joined Liberman’s bureau in April 2009. The prosecution says that Liberman both failed to report Ben-Aryeh to the Foreign Ministry’s appointments committee and actively campaigned in fall 2009 for Ben-Aryeh to get a promotion to Latvian ambassador.
According to the prosecution, the campaign included Liberman giving instructions to thendeputy foreign minister Danny Ayalon saying that Ben-Aryeh was his preferred candidate (all of this based on what Ayalon told police). Liberman and his lawyer Jacob Weinroth denied any campaign whatsoever to assist Ben-Aryeh with the Latvian position and played down the post in Liberman’s bureau as a temporary journeyman position for personnel waiting for their next real job.
They said that at most, he had committed an ethical infraction by not reporting Ben-Aryeh – but certainly had done nothing criminal.
Liberman’s narrative is that Ben-Aryeh did not communicate anything verbally about the note, that Liberman did not fully read it, that he thought it came from the Belarusan authorities or the media, and that he destroyed it as soon as he saw the words “investigation into Avigdor Liberman.”
This could nullify any proof he had a criminal mental state regarding the note.
In his narrative, Ben-Aryeh not only initiated the issue, but completely caught him by surprise, and his instinctive reaction to destroy the note and not report him was at worst a misplaced worry about ruining Ben-Aryeh’s distinguished, decades-long career over a momentary lapse, which hurt no one.
A fascinating drama surrounding the proceedings was the sensational conflict between Liberman and Ayalon, a former dynamic duo who ran the Foreign Ministry and Yisrael Beytenu, turned arch-enemies – with public fights about who was willing to shake who’s hand, and Liberman saying Ayalon lied about his helping Ben- Aryeh because he booted him from the party.
Regarding the contradictory stories given by Ayalon and Liberman about whether Liberman actively pushed for Ben-Aryeh’s promotion, the state said that Liberman’s story had evolved unbelievably to claiming that not only did he not meet privately with Ayalon about the Ben-Aryeh appointment, but he had never met privately with Ayalon about any appointments.
Liberman also may have had a questionable narrative about how much guidance he gave Ben-Aryeh for seeking the promotion.
Ayalon, on the other hand, was confronted with having to explain why he had told Channel 1 in an interview that Liberman was not involved in Ben-Aryeh’s appointment, while saying the opposite in court.
Yet, though much of the coverage focused on Liberman vs Ayalon, the outcome could come down to whether the court accepts Ben- Aryeh’s statements to police or in court. (In fact, the court all but told the sides that the Ayalon-Liberman wars would not be relevant to the verdict.) Ben-Aryeh was convicted in October 2012 for illegally passing Liberman the note.
Incidentally, the fact that one of the judges on this panel sentenced Ben-Aryeh to a mere four months of community service on his conviction, when it is clear that his acts were far worse than Liberman’s, could signify that at least one judge would be hard-pressed to give Liberman a harsh sentence or a finding of moral turpitude if convicted.
Ben-Aryeh told police he had elaborated upon the note and the investigation to Liberman, who took time to fully read the note before destroying it.
But in court, Ben-Aryeh turned hostile to the prosecution, slamming the witness stand and telling the court he did not say a word to Liberman about the note, claiming that he had misspoken under pressure from the police.
He also tried to say he corrected these statements at a later point while speaking to police, but the court did not appear to accept this explanation.
Aside from factual disputes, the biggest problem for the prosecution is that the core of its case is not that Liberman did something criminal, but that he failed to do something – reporting Ben-Aryeh.
Thus, the final decision could be somewhat more connected to interpreting case law than that employed in Ehud Olmert’s case, where the primary question was: Who to believe on a factual level? As Dr. Shmuel Saadia, a lawyer and author of a 685-page encyclopedic work on public corruption cases, said, “Breach of public trust” (and the minor fraud charge linked to it) is highly amorphous and controversial, and some have even argued for eliminating it as a crime.”
In a key decision by the Supreme Court recently in the case of Yehoshua Vita, a tax official accused of corruption, the court indicated that actions which could comprise a criminal level of conflict of interest may require a pattern of active conduct, the defendant initiating and placing themselves in the conflict of interest situation, and very close juxtaposition in time of the events in question.
A full year passed from the time that Ben-Aryeh gave Liberman the information until Ben-Aryeh submitted himself for promotion, creating substantial doubt about any attempt to connect the events. Plus, everyone agrees that Ben-Aryeh initiated the situation, not Liberman.
Vita is significant not just because it is recent, but because the judges in the Liberman case asked the lawyers several questions about its implications for the case, showing they believe it is important.
Another factor mentioned in Vita, the seniority of the public official, could cut either way.
On one hand, Liberman was foreign minister when he failed to report Ben-Aryeh to the appointments committee, and can be said to have had some direct supervisory contact with him in his bureau.
On the other hand, when Ben- Aryeh gave Liberman the note, Liberman was a mere opposition Knesset member with absolutely no power over Ben-Aryeh, even as Ben- Aryeh admitted to being an admirer of Liberman.
Liberman himself thought this was at the heart of the case, as The Jerusalem Post caught a glimpse of a note he passed to his lawyers that said, “It needs to be emphasized that I was only an MK, and only an MK in the opposition in 2008.”
If Saadia is correct, and the power of the proof beyond a reasonable doubt standard overcomes other considerations in what appears to be a borderline case, Liberman is likely to get off.
If the court buys into the prosecution’s narrative that Liberman’s failure to report Ben-Aryeh as foreign minister was a separate and significant act showing a pattern of conduct, and accepts Ben-Aryeh’s statements to police over his court testimony, Liberman will likely go down.
With the magnitude of this moment for politics in Israel clarified, one must remember that it is almost guaranteed not to be the end to the story.
First, Liberman could be convicted without a finding of moral turpitude, which could let him remain in politics, if he ignores his self-proclaimed and unenforceable commitment to resign upon any conviction.
Also, a little-discussed quirk of his case is that the allegations were minor enough that the case was assigned to the lowest court level, the magistrate’s court, meaning there is likely to be not one round of appeals, but two – one round to the district court and a second to the Supreme Court.
If Liberman is found guilty with moral turpitude, he will be outside public service, but keeping the case alive with an appeal will keep his hopes alive.
If he is found innocent, he will be able to proceed in all of his positions, including as foreign minister.
But some level of a cloud of uncertainty will continue to remain about his future, as long as the appeal is pending.