A significant change may have occurred in Prime Minister Benjamin Netanyahu fortunes with the Channel 2 report over the weekend that the police will recommend indicting him.
Until then, Attorney-General Avichai Mandelblit viewed those wanting to indict Netanyahu in the police and the state prosecution as lower-level officials.
At the highest levels of the police and the State Attorney’s Office, Mandelblit believed that there was unanimity that the Netanyahu investigations, while problematic in appearance, were borderline and risky cases when it came to trying to win a conviction in court.
If the police recommend indicting Netanyahu it would be a watershed moment. No longer would he be able to credibly say “There is nothing.” No longer would he be able to say that he will provide answers and it will all go away – just like what happened recently with opposition leader Isaac Herzog.
Benjamin Netanyahu dismissive of corruption allegations on January 2, 2017
One of the primary arms of law enforcement in the country would be saying that its most senior officials believe the prime minister is guilty of a crime.
And yet Netanyahu would still have a strong chance of dodging the bullet and staying in power.
At the end of the day, the police do not decide whom to indict, Mandelblit does.
In fact, in major cases involving public officials in the past, Mandelblit’s predecessor, Yehuda Weinstein, overruled the police a number of times.
Weinstein overruled the police who in 2009 recommended indicting Avigdor Liberman for an alleged massive multi-million dollar money-laundering scam (he was eventually indicted and acquitted in a much smaller affair) and in 2014 former IDF chief of staff Lt.-Gen. (res.) Gabi Ashkenazi for breach of trust in the Harpaz Affair.
Notably, in the same Harpaz Affair, Weinstein overruled the police who wanted to indict Mandelblit, at the time Netanyahu’s cabinet secretary, for obstruction of justice in delaying advising Ashkenazi to provide evidence to investigators.
The fact that the police in the past wanted him indicted, could also make Mandelblit skeptical about automatically endorsing their recommendations for other public officials.
There is little to be learned regarding the Netanyahu case from the police recommendation in 2010 to indict Ehud Olmert, as he resigned from the prime ministership before they made their recommendation due to a much larger mountain of evidence and corruption affairs and much weaker political support.
But there are also other reasons that the police and an attorney- general see things differently.
Police interrogators often feel officials should be indicted if they are lying or seeming to evade questions or conceal something.
Attorneys-general think more in terms of what can be proven in court and what are the chances of a conviction.
The police also know that they will not be held responsible for bringing down a prime minister, since their recommendation is not binding.
In contrast, Mandelblit has made it clear that his standard for indicting a prime minister requires a very high chance of conviction, since he would shoulder full responsibility for bringing down Netanyahu with an indictment.
That said, a police recommendation to indict shifts the incentives for Mandelblit.
As long as the top police and top prosecutors recommended not to indict, Mandelblit would be in a strong position if he defies lower level police and prosecutors, many in the media and Netanyahu’s detractors by not indicting him. He could fall back on simply following the recommendations of the rest of the system.
If on the other hand, the police at the highest levels recommend indicting Netanyahu, and Mandelblit overrules them, he is sticking his neck out.
Mandelblit at the end of the day is a man of the system, and his next aspiration, in five years, would be an appointment to the Supreme Court.
For that to happen, he will need to be taken seriously by the legal establishment far more than he will need political favors, even from Netanyahu.
In that sense, the prime minister’s fate could come down to head of the state prosecution, State Attorney Shai Nitzan. If Nitzan goes with the police, Mandelblit might be hard-pressed to disagree.
If Nitzan goes against the police, Mandelblit would still have cover to override the police, claiming support from within the system.
Of course, Mandelblit could still override Nitzan, as Weinstein overruled the state attorney in his day regarding the multi-million dollar Liberman case.
But Weinstein was far older (about 20 years) and had no ambitions to join the Supreme Court (and he was too old to be eligible).
At the end of the day, the chances of Mandelblit indicting Netanyahu are still low due to Supreme Court precedents making it harder to win public corruption cases. But a recommendation by the police as an institution to indict would definitely move the flag posts against the prime minister.