Legal Affairs: A win that ends his troubles?

Can Netanyahu’s decisive election victory help save him from being forced out of office when the final indictment comes down?

By
April 12, 2019 01:52
WILL THE Submarine Affair eventually sink Netanyahu?

WILL THE Submarine Affair eventually sink Netanyahu?. (photo credit: BAZ RATNER/REUTERS)

 
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The results are in.

Prime Minister Benjamin Netanyahu beat Benny Gantz – the specter of possible illegalities or unsafe decisions he may have made relating to Case 3000, the “Submarines Affair.”

Is that the end of his criminal-probe issues?

Anyone who supported Prime Minister Benjamin Netanyahu did not care about any of the criminal cases he is facing, or at least viewed his positives as trumping any concerns they have regarding those cases.

Yet, what was truly revelatory about the election results was not merely that his supporters did not care that he was being investigated. We already knew this from polls over recent years from when the police were already going after the prime minister.

Rather, it was that they still did not care even when a Netanyahu admirer like Avichai Mandelblit, who also happens to be the final decider as attorney-general, had made it clear that he will indict the prime minister. They do not even care that Netanyahu may be forced out of office in around a year or less due to the charges.

Or maybe the public believes that by voting for Netanyahu, they will get Mandelblit to back down. If that was the basis of their vote, they will be disappointed. There is zero chance of Mandelblit backing down from indicting Netanyahu.

The reason relates to the journey that it took for Mandelblit to get to the point of indicting the prime minister.

One needs to remember that Mandelblit was Netanyahu’s cabinet secretary, was put in the attorney-general job by him and ideologically supports most of his Center-Right policies.

With all of the attacks on the legal establishment, it is also easy to forget that Mandelblit is the attorney-general who is most amenable one in decades, trying to tailor his legal opinions to fit government policy.

Mandelblit was against indicting the prime minister for nearly two years, while the police and much of the prosecution were already convinced. This was at the stage when all that was in play were cases 1000 (the “Illegal Gifts Affair”) and 2000 (the “Yediot Aharonot-Israel Hayom Affair”).

Only when Case 4000, the “Bezeq-Walla Affair,” came around did Mandelblit believe there was a smoking gun so blatant that he had no choice but to indict Netanyahu, which also shifted his position on the other two cases.

Given the level of certainty he needed to get to this point, he will not be influenced by the election results.

His next dream job is not in politics, but rather with the High Court of Justice. So his audience is the legal establishment, not the court of public opinion. Most of the legal establishment – although not all – is behind him on this.

BUT EVEN if Mandelblit is going to go forward with eventually indicting the prime minister, the next big question is: Will Netanyahu’s decisive election win save him from being forced out of office when the final indictment comes down by or before February 2020?

The dry law on the books says that a prime minister can stay in office until an actual conviction and then until all appeals are exhausted. Given the statute, the issue will move beyond Mandelblit’s purview to the High Court.

It is true that many commentators have written that even though the court has said it can fire ministers once they are indicted, it has not said this about the prime minister. Firing a prime minister is a bigger deal than firing a regular minister. When a minister temporarily steps down, he can theoretically return to his post within month if acquitted – as Avigdor Liberman did in 2012-2013.

Presumably, a prime minister cannot just return to his post. That means that forcing him to step down likely topples the government and leads to new elections – in this case, only around a year after they were just held.

This would certainly be a very uncomfortable position for the High Court to be in.


Prior to the election, sources close to Mandelblit had told the Post that, presuming he does not defend Netanyahu against a petition to the High Court, the court would likely force the prime minister out since the charge is bribery, not mere breach of trust.

 Understanding the court’s decision that forced Arye Deri to resign in the early 1990s helps to understand how this could happen. In the Deri decision, the court acknowledged that it had no obvious authority to force him out under the dry law. It also admitted that there was precedent, such as with former minister Aharon Abuhatzeira, for ministers to continue serving post-indictment. But the court stated it would fire Deri anyway, because protecting the public’s faith in the rule of law was the decisive factor, ignoring past precedent that undermined that ideal.

WILL THE current High Court feel like it is protecting the public’s faith in the rule of law by forcing out a prime minister who just won reelection despite the public knowing of his criminal issues?

Won’t it be easier at this point for the High Court to go with the dry law and say that the public or the Likud’s coalition partners are the ones who have the job to force the prime minister out earlier than the that law says?

If the public and the coalition partners want to let Netanyahu stay in office during his criminal trial and until he is convicted, can’t the High Court ask: who are we to disagree?

However, swinging back in the other direction, 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.

Moreover, 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 it had the power to force multiple mayors to resign. This was even after they were reelected, with the public knowing about their indictments – exactly the situation that Netanyahu is in now.

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, which means that Netanyahu’s reelection will be an important factor for the High Court, but not necessarily a decisive one.

ANOTHER X-factor is how much the judicial climate will change between now and when this comes before the High Court. Following the court’s controversial ruling disqualifying Otzma Yehudit candidate Michael Ben-Ari – while not disqualifying any extremist Arab candidates – as well as the reduced power of the Kulanu Party, the judicial establishment is less protected than ever.

The calls for passing a bill to empower the Knesset to overrule High Court vetoes of Knesset laws may finally come to fruition after years of stalling. Calls to seize power over appointing future High Court justices from the justices also seem to be more serious than in the past.

 It is unclear how this broad issue might make the court more or less likely to force out Netanyahu.

Does the High Court let Netanyahu stay in power if he protects its authority? Does it take him down, viewing him as empowering forces which are anti the High Court – something repeatedly displayed during the elections? If a bill is passed to veto High Court decisions, could the Knesset even veto a High Court decision to force Netanyahu out?

This would not be as blatant a power grab as the “French Law” designed to stop any prosecution of the prime minister. The cases against Netanyahu would go forward: it would just be that the Knesset could claim that it wants to observe the letter of the law, which does not force out a prime minister until he is convicted.

But if this happened, would the High Court then veto the law that allows vetoing its decisions?

Hebrew University Rector Barak Medina notes that the High Court hinted – in a 1994 decision regarding kosher food and a 2017 decision regarding the biannual budget – that even though it did not strike those Basic Laws, it believed it had the power to do so.

At the end of the day, all of these debates are still mainly about timing.

With all of his defenses, and Netanyahu has many, Case 4000 is likely to end his unbeaten streak – whether before the High Court in around a year, or before a trial court upon conviction a couple of years later.

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