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
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
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
Whether he is found innocent or convicted will also
significantly impact to what extent the Likud and Yisrael Beytenu maintain their
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
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
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
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
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.
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
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.
factor mentioned in Vita, the seniority of the public official, could cut either
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.
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
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.
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