Analysis: What would Netanyahu’s Case 1000 trial look like?
Gifts versus illegal benefits is an important fight, as the court will need to decide conceptually whether the Milchan-Netanyahu relationship was one of friends, of bribery or of some kind of a mix.
By YONAH JEREMY BOBUpdated: FEBRUARY 15, 2018 02:36Prime Minister Benjamin Netanyahu attends a session during the 2016 World Economic Forum in Davos, Switzerland(photo credit: RUBEN SPRICH / REUTERS)
Imagine that Prime Minister Benjamin Netanyahu has resigned. Someone else is running the country for the first time in a decade.Sure, we had the trial of former prime minister Ehud Olmert, but he was the king for only three years. Netanyahu has already been prime minister, combining his two stints, for over 12 years, and he will break David Ben-Gurion’s record as the longest-serving premier in September – if he’s still in office.What would his ‘illegal gifts affair’ trial look like?Before going into the details of the trial, the main points as always are facts, legal interpretation, x-factors and witnesses.Netanyahu is much worse off than Olmert regarding the facts – simply put, he does not dispute them. Olmert could say that no one gave or received money or value of any kind, and the prosecution had to prove their existence.Netanyahu, on the other hand, admits to receiving all of the gifts he is accused of receiving – so he has to give in on tons of potential defenses before the trial even starts.But he does have a wealth of legal interpretations to knock out each fact from being used as proof against him. That is where he will make his stand. To get a conviction, the prosecution will need to bring enough evidence to refute each interpretation as absurd.The final piece is the guest star witnesses: Billionaire Arnon Milchan, Milchan’s secretary, Yair Lapid, former Netanyahu chief of staff Ari Harow, Australian billionaire James Packer, Zionist Union MK Eitan Cabel, Sara Netanyahu and of course Netanyahu himself. This is not a great set of witnesses for the prosecution. Many of them are loyal to Netanyahu or at least will have no stomach to unload on him.And now the details.Are we talking about gifts or illegal benefits – and when does Netanyahu and Milchan’s history start?Gifts versus illegal benefits is an important fight, as the court will need to decide conceptually whether the Milchan-Netanyahu relationship was one of friends, of bribery or of some kind of a mix depending on the time period in question.In terms of history, the police recommendations focused – and the prosecution will focus – on the period between 2007 and 2016. During the vast majority of that time, Netanyahu was prime minister or was at least knocking on the prime minister’s door. The prosecution will emphasize the totals – a staggering NIS 1 million of allegedly illegal benefits from Milchan and James Packer.The defense will start the history earlier. They will say that Netanyahu and Milchan’s friendship and gifts go back 20 years, including an extended period when Netanyahu was nowhere near the throne. They will say that looking at the portions of the 20-year period when Netanyahu was not premier proves their friendship argument.What are the real amounts that Netanyahu will be accused of accepting as bribes?The prosecution will emphasize the NIS 1m. figure to give the case a gravitas of something beyond a few expensive cigars.Netanyahu’s team will pick apart the NIS 1m. into pieces that only relate to his wife, Sara, and which they will say he knew nothing about.They will try to toss out gifts that come only after a point in which the prosecution has more evidence of gifts being involuntary, and will try to disconnect specific gifts from any specific events where the prosecution says Netanyahu acted on Milchan’s behalf. The prosecution will try to connect specific gifts to specific events where they say Netanyahu used his power to benefit Milchan.Olmert was convicted of bribery regarding only a fraction of the original charges. Even if Netanyahu is convicted, the amount will likely be far less than NIS 1m. Further, the defense will argue that the total amount is irrelevant as it was spread out over such a long time, and that in real-time terms, the amounts were small.What are the dominant characteristics of the Netanyahu–Milchan relationship?The defense will emphasize their long-standing friendship and that Netanyahu sometimes also gave Milchan gifts. They will be pressed about statements by Milchan and his secretary to police that even though part of the gift giving started as friends, at some point it evolved into being involuntary.The prosecution will jump on this admission and say that if the illegal-benefits giver – Milchan in this case – admits they were friends, but also admits that the gifts became involuntary, he has extra credibility in accusing Netanyahu and must be believed.Netanyahu will respond that Milchan never said that he was giving the gifts to receive something in return.The prosecution will counter saying Milchan tried to save himself by just calling the relationship one of involuntary gifts. However, since this is the maximum Milchan could admit without explicitly incriminating himself, it makes it clear that the gifts were being given as bribes and not as part of a friendship.Netanyahu will respond that even if Milchan changed his intent about why he was giving the gifts, after so many years of gift-giving, if Netanyahu is the defendant and he still believed the gifts were being given in the context of friends, it is only his intent that matters.The prosecution will flip this argument about Netanyahu’s mindset being decisive and point out that this makes it even clearer that the gifts were bribes. Even if NIS 750,000 was not a lot of money for Milchan, it was a huge amount of money for Netanyahu, who at the end of the day has a limited state salary.Maybe one of the strongest arguments the prosecution will have will be that the consistency, regularity and involvement of a bureaucracy of secretaries, drivers and assistants in delivering the gifts is evidence that what was given were illegal benefits for bribery and not gifts of friendship.How does Packer fit into the case?The prosecution will use the Packer narrative to boost their case that the Milchan-Netanyahu relationship was one of bribery and business rather than friendship. They will say Packer entered the picture to help Milchan with the burden of keeping up with Netanyahu’s expensive gifts appetite so that the prime minister would continue to act on his behalf.The defense will argue that the fact that there is no recommendation to indict Packer should toss out the NIS 250,000 related to him and should be proof that what Milchan gave were just gifts and not related to a crime.How do Sara Netanyahu and Milchan’s secretary fit into the case?The prosecution will say that anything Sara Netanyahu got from Milchan can be attributed to Netanyahu and that he knew about all of it. Netanyahu will say he did not know about any of it and that Sara was also connected to Milchan as part of long-standing family connections.But the prosecution will produce Milchan’s secretary who will say that Netanyahu intervened on Sara’s behalf – essentially eliminating the idea that he had no knowledge of the gifts she was receiving. The defense will reply that if there is only one instance where Netanyahu intervened, it is the exception that proves the rule. This will be a tricky tightrope for the defense to walk.What benefits did Milchan get from Netanyahu – and how does Lapid fit in?This was always the hardest part of the case for the prosecution. The evidence that came out on Tuesday was that Netanyahu tried to get a law passed that would get Milchan potentially millions or hundreds of millions of shekels in tax exemptions as a returning Israeli citizen.The police say, and the prosecution will claim, that Netanyahu even leaned on Lapid, then finance minister, to push the bill through, but that Lapid or his team blocked it as against state interests.Netanyahu will deny that he and Lapid ever spoke about the issue. To the extent he explored the issue with anyone, he will argue it was to get greater foreign investment for Israel. This argument may come down to whether Netanyahu’s economic theory for why the bill could help Israel was theoretically viable, even if rejected by the ministry.They will ask why Lapid is not under investigation, arguing that he should be since he worked with Milchan. They will note that as finance minister, any efforts he made discussing the tax exemptions should be more criminal than Netanyahu’s actions, since he didn’t have direct authority over the tax issue. With all of the politics surrounding Lapid being a witness, it is only his previous position as finance minister that matters for the case.Still, the prosecution can respond that, with Netanyahu’s long history of alleged illegal benefits from Milchan, he should not have touched anything Milchan was involved in. The defense will note that Netanyahu acted to close Channel 10 which could have caused Milchan a large financial loss. But the prosecution can swing back and say it doesn’t matter if he acted both for and against Milchan – anything he touched related to Milchan or did for him was illegal.For all of the instances where Netanyahu may have tried to help Milchan, the tax exemption issue is the core for determining whether there was quid pro quo bribery.While less exciting, this is the scarier case for Netanyahu.
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