Election results and Bibi’s fate in court - analysis

The result of the election could heavily impact whether Netanyahu faces charges as a sitting prime minister.

September 17, 2019 19:24
3 minute read.
Prime Minister Benjamin Netanyahu attends a meeting with Russian President Vladimir Putin at the Boc

Prime Minister Benjamin Netanyahu attends a meeting with Russian President Vladimir Putin at the Bocharov Ruchei state residence in Sochi, Russia September 12, 2019.. (photo credit: REUTERS/SHAMIL ZHUMATOV)

Prime Minister Benjamin Netanyahu will face public corruption charges in court someday, Attorney-General Avichai Mandelblit made clear in February, even if the final indictment decision is waiting until December.

But the result of the election could heavily impact whether Netanyahu faces those charges as a sitting prime minister, whether he will be forced out of office because of those charges, or whether he will buy a postponement of several years until he becomes a civilian.

In short, if Netanyahu forms the next coalition, he has the possibility of passing an immunity law to safeguard him from prosecution while in office, or could try to rely on an interpretation of current Israeli law that would say a sitting prime minister cannot be forced to resign until convicted.

If he is indicted and not forced to resign, then his trial as a sitting prime minister will probably proceed slowly and have a number of unpredictable delays due to crises he will need to handle.

If Blue and White Party leader Benny Gantz forms the next coalition, Netanyahu’s trial will likely start within a year or less of his expected December indictment.

Let’s break down all of that.

• Scenario one: Netanyahu forms the next coalition and successfully passes an immunity bill that says he cannot be prosecuted until he steps down as prime minister.

If that happens, he already has a better chance of delaying his trial.

Theoretically, he could still be forced to resign and to go to trial immediately, if the High Court of Justice stepped in.

However, top legal sources have indicated that the High Court would be less likely to step in regarding such a scenario.

If the High Court did try to step in, there could be a “constitutional” crisis, especially if the Knesset passed a law giving them veto power over certain High Court decisions.

• Scenario two: Netanyahu forms the next coalition, but cannot, or decides not to, pass an immunity bill, resting his hopes on the dry Knesset law that only forces a prime minister to resign after he is convicted and after all appeals are exhausted.

Once indicted, petitions would certainly be filed to the High Court demanding Netanyahu be forced to resign. They would be based on the idea that the Knesset law does not force a resignation, but that judge-made laws have already broadened the obligation for any minister to resign to include even the stage of indictment.

It is a coin toss on how the court would rule: while the justices would not want to get involved, Netanyahu being accused not merely of breach of trust but also of bribery in Case 4000 would be hard for them to ignore.

If the justices force Netanyahu to resign, then the case would go forward normally.

If they did not intervene, the trial would go forward, but with an unusual number of delays due to Netanyahu being a sitting prime minister who has to travel and deal with crises.

• Scenario three: If Gantz forms the next coalition, then Netanyahu will no longer be prime minister and will have no basis to delay his trial.

In some ways, there may be less of a rush then, as many of his detractors have wanted him forced out of office, and he will already be out. But the legal establishment has its own non-political calendar, and his trial will move forward at a normal speed.

At earlier stages there were thoughts that he might secure a plea deal to step down as prime minister if he could get out of jail time. But after all of the hostility that has grown between him and the state prosecution since December – when the first election this year was called – that possibility has become far more remote.

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