What would happen if Netanyahu was indicted?

Which cases would Bibi win and lose and what jail time is at stake?

By
March 8, 2019 15:54
PRIME MINISTER Benjamin Netanyahu – if they go to trial, how will his corruption trials end?

PRIME MINISTER Benjamin Netanyahu – if they go to trial, how will his corruption trials end?. (photo credit: MARC ISRAEL SELLEM)

 
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Attorney-General Avichai Mandelblit’s verdict is in on the secret recordings, texts, late-night summons and alleged schemes of Prime Minister Benjamin Netanyahu.

There’s a strong likelihood that the decision will end the prime minister’s career eventually; and with a bribery indictment as a near certainty, we can start peering into the future to predict how each of the three alleged corruption affairs will come out at trial.

Where is Netanyahu most likely to obtain an acquittal, and where is he most likely to be convicted? What kind of jail time might he serve? And how will the legal battle before the High Court of Justice play out, if Netanyahu refuses to resign upon his indictment and a petition is filed to force him out?

In short, Netanyahu is likely to be convicted of bribery in Case 4000, the Bezeq-Walla Affair, but has a strong chance of acquittal in Case 2000, the Yediot Aharonot-Israel Hayom Affair. Case 1000, the Illegal Gifts Affair, is likely a borderline coin toss.
How might this all play out?

Case 4000

Case 4000, the Bezeq-Walla Affair, is the most serious for Netanyahu and has the most voluminous evidence against him, and he will need to defend against two close former allies turned state’s witnesses, who point the finger directly at him. They also know how to undermine many of his potential alibis.

Netanyahu is accused of cutting a deal with Shaul Elovitch, who owned both Bezeq and Walla, in which the prime minister would get the Communications Ministry to approve policies friendly to Bezeq, in exchange for positive coverage from Walla.

Before Mandelblit distributed a 57-page summary of the allegations, reports spoke of a benefit of NIS 680 million for Elovitch, with indirect benefits of around NIS 1 billion.

Mandelblit raised the sum to NIS 1.8b. in benefits to Elovitch and added additional problematic policies that helped Bezeq beyond the frequently discussed Bezeq-Yes merger. That amount of money allegedly going into Elovitch’s pocket, even if parts of it can be peeled off as not being fully proven, will be something that the court will not be able to overlook.

Also, the sheer volume of the number of actions – outlined publicly by Mandelblit for the first time – that Netanyahu and his associates allegedly took to systematically advance the scheme will be hard to contend with.

But Netanyahu has legitimate defenses even in this tough case.

He will note that apolitical officials in multiple government agencies approved the Bezeq-Walla merger and that Walla coverage of him over the years has been primarily negative.

Netanyahu has a better chance at trial to attack the Walla piece of the case. The prime minister never spoke directly to Walla CEO Ilan Yeshua or the site’s reporting staff.
In some instances, he spoke to Elovitch, who relayed the instructions on which positive articles to post and which anti-Netanyahu articles to avoid or downplay.
But in most instances, his former aide Nir Hefetz, Sara Netanyahu or Yair Netanyahu passed on instructions to Elovitch.

This could give the prime minister plausible deniability, especially since Mandelblit overruled the State Prosecution in deciding not to indict Sara and Yair for bribery.
How can the court convict the prime minister for bribery, if his middle people are not accused?

Hefetz will provide a lot of the ammunition, explaining exactly what Netanyahu’s instructions to him were, along with text messages that Elovitch sent summarizing what the prime minister wanted.

From Mandelblit’s documents, it is clear that Hefetz will also testify that the prime minister ordered him not to pass on any instructions from Sara or Yair to Walla without him reviewing their ideas first.

However, Netanyahu will attack Hefetz as a rogue agent who often tried to please Netanyahu at all costs, even violating the law, without being told to do so by the prime minister.

There is evidence that Hefetz sometimes did act independently to please Netanyahu and took lots of actions in gray areas. If he was the only state’s witness, Case 4000 might have trouble.

But Netanyahu’s biggest problem is the one-two combination of Hefetz and his former aide and former Communications Ministry director-general Shlomo Filber.

Filber undermined Netanyahu’s alibi that the Bezeq-Walla merger was not a favor for Elovitch against the recommendations of the vast majority of apolitical officials.

Moreover, Filber will tell the court dates, times and conversations when Netanyahu gave him specific instructions to advance Elovitch’s interest. Further, both Filber and the apolitical officials who approved the deal will say that Filber and other Netanyahu officials pressured them.

Most importantly, though Hefetz’s character makes him more attackable, there is absolutely no reason that Filber would have tried to help Bezeq other than under Netanyahu’s orders. Filber got nothing out of it.

The bottom line is that the money to Elovitch, the volume of interference by the prime minister with Walla, and the two state’s witnesses will be too much for Netanyahu to contend with.

In terms of jail time, the maximum sentence is seven years. Often, how much time one receives relates to the amount of money involved and the length of time of the bribery scheme.

Netanyahu did not receive a dime of money, but former state attorney Moshe Lador has said that media assistance to be elected prime minister could be defined as priceless or worth billions.

No one knows how the court will rule on this, but some hints may come out when a jail sentence is issued for former Ashkelon mayor Itamar Shimoni.
In February 2017, Shimoni was indicted for a media bribery pattern very similar to Netanyahu’s. Shimoni’s trial is still ongoing, but there will probably be a ruling in the coming months – before a final indictment is announced against Netanyahu.
But if former prime minister Ehud Olmert is any indication, by the time there is a conviction and all appeals are exhausted, the seven-year maximum could easily be reduced to one to two years. (Olmert’s main six-year sentence was reduced to 18 months by the Supreme Court.)

Case 2000

Case 2000 is damaged goods from the outset.

Mandelblit overruled State Attorney Shai Nitzan and Netanyahu prosecution team lead lawyer Liat Ben-Ari in seeking an indictment only for breach of trust, as opposed to bribery.

Paradoxically, Mandelblit said he will seek to charge Yediot owner Arnon (Nuni) Mozes for bribery.

How do you charge someone with offering bribery, but not someone with receiving it?
It happens, but it is messy, especially when, unlike Case 4000, the deal never happened.
To date, courts still have extreme difficulty with defining what breach of trust is. Is it engaging in actions that violate conflict of interest principles, hiding actions from authorities, failing to stop illegal actions?

Once Mandelblit dropped the bribery charge, he hinted to the court and the defense that the case has holes.

The prosecution’s case here largely rests on the shock value of the recordings it has of Netanyahu discussing the alleged media bribery scheme with Mozes.

On December 4, 2014, Netanyahu met with Mozes, who offered the prime minister positive media coverage and to attack Netanyahu rivals Naftali Bennett and Moshe Kahlon with “all of my efforts.”

The prosecution will say that Netanyahu broke the law when he responded by describing to Mozes how he would pass the law that would weaken Israel Hayom and empower Mozes. Also, after the fifth of six meetings with Mozes, Netanyahu met with Israel Hayom owner Sheldon Adelson, and asked for his help to carry out what he had promised to Mozes.

Adelson’s statements to police could be the body blow for Netanyahu. A huge fan of Netanyahu, he has no incentive to lie to hurt the prime minister.

But there is a strong chance that Adelson, who is already very sick, will never testify and never be cross-examined.

In the Olmert trials, part of the defense’s effective attack, which reduced large portions of jail time, was the fact that a key witness for the prosecution, Shmuel Duchner, died before they could cross-examine him. Accordingly, the defense said that much of his testimony needed to be disqualified. It simply was unfair to convict Olmert on the basis of a witness who was never cross-examined.

The prosecution might be able to overcome this, but along with the many other above question marks, it likely will doom Case 2000 at trial, and may even lead Mandelblit to drop the case entirely from his final indictment.

In the less likely scenario where Netanyahu is convicted, the charge of breach of trust might or might not lead to jail time. If there is jail time, it would be a small addition to the larger Case 4000 jail time.

Case 1000

Case 1000 does not have as many holes as Case 2000, which Mandelblit almost closed completely, but it has plenty of issues that make it borderline at trial.

Like Case 2000, the indictment is for the vague and hard to define breach of trust charge.
The defense and the court will ask, if there was not enough quid pro quo for a bribery charge, like Nitzan and Ben-Ari wanted, why is there enough for a breach of trust charge?

Also, if billionaire Arnon Milchan was not charged for giving Netanyahu gifts, why should the prime minister be charged?
The big question will be whether the court sees all of the actions Netanyahu took for Milchan as separate and distinct acts, none of which came to fruition, or part of a damning pattern.

Netanyahu allegedly received from billionaire Arnon Milchan NIS 267,254 in cigars, NIS 199,819 worth of champagne and NIS 10,900 worth of jewelry for Sara. Adding up other related amounts, the breach of trust charges could get to NIS 1m.

Milchan and his assistant, Hadas Kline, will testify that Netanyahu knew about all of this, including gifts to Sara, which he has denied knowing about. The gifts to Sara are critical because Sara fought for them – which hurts the defense that they were given voluntarily.

Mandelblit’s document revealed that Netanyahu summoned IDF Maj.-Gen. Eitan Dangot to provide Milchan with an IDF helicopter to go to Jordan for business.

Netanyahu’s lawyers have told The Jerusalem Post that this was for businessman Ratan Tata to advance deals with Jordan, not for Milchan. But the prosecution will bring testimony that Netanyahu also met with Milchan’s accountant Zeev Feldman to ensure that the business plans were to benefit Milchan.

Another revelation from Mandelblit’s document was that Filber appears in Case 1000 as well. Filber will testify that Netanyahu summoned him late at night as a middleman also to advance Milchan’s interests in investing in the Keshet channel.

There is testimony about Netanyahu allegedly trying to help Milchan get both a massive tax exemption and to gain residency status in the US, and working on top US State Department officials to get it, immediately after Milchan brought additional expensive gifts. Will Yair Lapid and John Kerry be testifying?

How much will Milchan and former Netanyahu aide and now state’s witness Ari Harow try to help the prosecution, if at all, to nail Netanyahu? Harow in particular has avoided pointing the finger directly at the prime minister the way Hefetz and Filber did, instead providing general details. How will Sara, who has had trouble as a witness, hold up in court?

The number of questions and the lack of smoking-gun evidence or a smoking-gun witness as in Case 4000 are what make the result in this case so unclear.

If Netanyahu is convicted, though, of the full NIS 1m., he could easily face several additional months or more of jail time. But he will still likely get significantly less time than in Case 4000, and he could receive mere community service.

Again, the breach of trust charge – though officially it can carry a maximum sentence of three years – has wildly different results, depending on the specifics of the case. It usually does not lead to significant jail time.

WOULD NETANYAHU be able to stay in office until a conviction and all appeals are exhausted, as the dry relevant statutes say?

That is far from clear. Many commentators have noted that even though the High Court has said it can fire ministers once they are indicted, the court has not said this about the prime minister.

On December 3, Mandelblit told the Knesset, “Regarding regular ministers, there is clear case law from the High Court of Justice that after an indictment is filed, the minister must resign.... Regarding the prime minister, it is not a simple legal question, if it comes to that. Petitions that will [likely] be filed on that issue will certainly clarify it.”

There are also much bigger consequences to firing a prime minister. Unlike a minister who temporarily steps down but can return to his post if acquitted, presumably a prime minister cannot, and forcing his resignation likely could topple the entire government.
But sources close to Mandelblit have told the Post that presuming he does not defend Netanyahu against a petition to the High Court, the court would likely force him out since the charge is bribery, not mere breach of trust.

Those who think otherwise need to more carefully read the court’s decision that forced Arye Deri to resign in the early 1990s.

The court admits that it had no obvious authority to force out Deri under the dry law.

It also admits that there is precedent, minister Aharon Abuhatzeira, for ministers to continue serving post-indictment.

However, the court said that protecting the public’s faith in the rule of law was paramount, and that it would ignore past precedent that undermined those principles.

The fact is that the Knesset laws do not block the High Court from forcing the prime minister to resign before conviction; they only say that at that point, the prime minister must resign.

Further, in a series of High Court decisions and of then-attorney-general Yehuda Weinstein’s opinions between October 2013 and January 2014, both the court and Weinstein made it clear that the court had the power to force multiple mayors to resign. This was even after they were reelected, with the public knowing about their indictments.

True, Weinstein said that the court should take the fact that the mayors were reelected into consideration. But neither he nor the court said that this was decisive.

We don’t know what the court would have ruled, because eventually a new special committee created by the Knesset got each of the mayors to step down before the court had to step in.

Olmert quit before he was indicted.

That possibly is the bottom line. Whatever Netanyahu says now, down the line, facing a High Court petition and without Mandelblit’s support, he may also step down.

If not, the court would face the hottest potato it has ever encountered.

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