Benjamin Netanyahu .
(photo credit: MARC ISRAEL SELLEM)
Those who think that Benjamin Netanyahu would be able to continue as prime minister if he were indicted have not followed the developing law before the High Court of Justice.
It is true that under laws passed by the Knesset, a minister, including the prime minister, is only required to resign once he has been convicted of a crime with a finding of moral turpitude.
But the ground had started to shift on this in the 1990s, when the High Court ordered ministers Arye Deri and Rafael Pinhasi to resign upon their indictment for bribery.
When then-foreign minister Avigdor Liberman was indicted in December 2012, to avoid embarrassment, he resigned as soon as a High Court petition was filed against him remaining a minister.
Liberman’s case stood out because the major case against him was closed, and the minor fraud and breach of public trust case filed against him mostly had to do with him failing by omission – he failed to report one of his employee’s illegal actions.
Until he resigned, some thought that only an indictment for an active and more serious crime such as bribery would force a minister to resign pre-conviction.
Most important, The Jerusalem Post has learned that Attorney-General Avichai Mandelblit, however hesitant he may be to indict Netanyahu without a rock-solid case, agrees that the prime minister would need to resign if he is indicted.
In other words, the Knesset law has been made much stricter by court decisions, and Netanyahu would also face an immediate petition forcing his hand if he were indicted.
Further, it is unlikely that Netanyahu will be indicted for anything other than an active crime.
Benjamin Netanyahu dismissive of corruption allegations on January 2, 2017
The Post has learned that Mandelblit will likely not indict Netanyahu for something viewed as overly minor, so if there is an indictment, it will be for a crime that is relatively severe.
Finally, the High Court has now ordered a former prime minister off to jail and rejected Netanyahu’s personal appearance in court in its major ruling on the natural gas policy, so just the fear of the office is unlikely to stop it from taking him down.
What if Netanyahu is indicted and then goes to an election or if he announces an election and is indicted during the campaign period but before Election Day? These are more complex scenarios, though there is some precedent to look at.
In October 2013, three mayors who had been indicted and forced by the High Court to suspend themselves from office were reelected by their cities despite their indictments and resignations.
New petitions were filed against them to get the High Court to re-fire the mayors.
It is not entirely clear how the High Court would have ruled, since the state sidestepped the issue by forming a committee that could suspend the mayors pending the completion of their trials without them having to permanently resign.
There is no similar apparatus for a suspended prime minister to leave and return to office, and it is unclear how politically possible that would be.
But even if the High Court would be ready to force Netanyahu to resign in a vacuum, it might be much harder pressed to make him resign if he were indicted, went to a new election and won.
The idea is that winning reelection would change his legal status, as the voters would be choosing him with full knowledge of his indictment.
In that light, whether and when he goes to the ballot box could be highly significant legally.