After about two years of criminal probes, both US President Donald Trump and Prime Minister Benjamin Netanyahu are nearing decisive junctures.
At early stages, it seemed that only Netanyahu and Trump’s top aides were in trouble.
But that started to change in February for Netanyahu with the advent of Case 4000, the Bezeq-Walla! Affair, and for Trump in August when his lawyer Michael Cohen turned state’s witness and his ex-campaign manager Paul Manafort was convicted.
Over the last two weeks it got much worse for both leaders.
Israel’s police recommended indicting Netanyahu for bribery in Case 4000, and it was leaked that the state prosecution had recommended to Attorney-General Avichai Mandelblit to indict the prime minister in two other corruption cases.Recent legal events regarding Trump include revelations by special counsel Robert Mueller
that top Trump former aides Manafort, Cohen, Roger Stone and former National Security adviser Michael Flynn may have obscured ties that they – and maybe even Trump – had to Russia during the 2016 election.
Friday’s legal memorandum filed by Mueller also appeared to allege multiple campaign finance violations by Trump in directing cover-ups of allegations against him for adultery.
Even commentators supportive of Trump have now suggested that his son, Donald Trump Jr., is likely to face indictment in connection with some of the Russia allegations.
Still, no public smoking gun has yet been revealed of Trump-Russia collusion.
But as Mueller reveals more of his case in public court filings about the sentencing of the many Trump aides he has already convicted, what appeared unthinkable before August is now becoming more plausible.
Along with alleged obstruction of justice charges for firing FBI director James Comey and publicly pressuring top Justice Department and FBI officials about the probes, the continuing connections of Russia with the 2016 US elections could eventually imperil Trump’s presidency, either legally or politically.
Mandelblit is expected to announce intent to indict the prime minister around the Passover holiday in April.
There are no guarantees, but all indications are that Mueller will file his official report to the US Congress by then, if not sooner.
But Trump still has advantages over Netanyahu here because of crucial legal differences between Israel and the US.
The US presidency is conceptually built on the idea of kingship, with some reduced powers. Because of that, the president has several independent powers that the Israeli prime minister does not have – including, significantly, the power to pardon. In Israel, it is the president, who otherwise serves mostly as a figurehead, who has the exceptional powers to issue pardons.
According to most US legal scholars, this means that a sitting president cannot even be indicted while in office. This is based on the concept that you cannot prosecute the official who holds the power to pardon.
Though there is a minority group of legal scholars who debate this, it likely means that a sitting president must first be impeached before he can be indicted.
Both houses of Congress, including their Republicans, are needed to complete the impeachment and removal process – and the grounds are “treason, bribery or other high crimes and misdemeanors.”
While the Democrats retook the House of Representatives, the Republicans still hold the Senate and short of additional smoking gun revelations against Trump himself for Russian collusion, either zero or an insufficient number of Republicans would defect against Trump on the issue.
A Mueller report that recommends Trump be indicted for obstruction of justice, campaign finance violations or aspects of collusion with Russia (possibly a connection between a failed real estate deal, Russia-sanctions policy and gaining anti-Hillary Clinton information through Wikileaks) could hurt his reelection chances.
But absent more revelations of Russian contacts directly related to him, he would likely not face prosecution before early 2021 – and that would only be if he loses the election.
There is a debate about whether Netanyahu can be forced to resign under indictment like other ministers or whether he must be convicted, but there is no obstacle to indicting or convicting him, as there is with indicting Trump.
In addition, former chief justices Aharon Barak and Meir Shamgar have both come out stating that the High Court of Justice can force a prime minister to resign if he is indicted, just as it can with other ministers.
It is unclear whether the High Court would force Netanyahu out based on a Mandelblit indictment, but the US Supreme Court has no similar power to intervene.
Finally, unless there is more, a Russia-collusion case against Trump would be about a real estate deal that did not go through. On the contrary, Case 4000 against Netanyahu would be for a media bribery and merger-of-companies deal which did go through to the tune of up to NIS 1 billion for the premier’s media ally Shaul Elovitch.
As the two leaders enter the homestretch of their corruption probes, it increasingly looks like Netanyahu’s days may be numbered – and that Trump, although legally safe while in office, will take a large political hit, and eventually face charges whenever he leaves office.