Legal Affairs: Constitutional crisis averted?

New elections may avert a battle between the PM and the Supreme Court.

By
May 31, 2019 07:38
RIME MINISTER Benjamin Netanyahu and his wife Sara – who will benefit more from another round of ele

PRIME MINISTER Benjamin Netanyahu and his wife Sara – who will benefit more from another round of elections?. (photo credit: MARC ISRAEL SELLEM)

The failure to form a coalition following the April 9 election and the resulting rerun elections set for September 17 are being seen universally as a failure.
 
But there may yet be one positive take-away: the timing of the do-over election may alleviate concern over a possible constitutional crisis between Prime Minister Benjamin Netanyahu and the Knesset on one side, versus Attorney-General Avichai Mandelblit and the Supreme Court on the other.
 
Chances are now much higher that the incoming government after the September 17 election will simply not be set in time to head off Netanyahu being charged with bribery in a final indictment.
 
There still might eventually be a more general law passed letting the Knesset veto Supreme Court decisions, but it would likely be too late to help the prime minister, and would be directed more at issues like the African migrants’ debate.
 
This was not what Netanyahu had in mind.
 
Following the April 9 election, all the news was about the incoming government passing a series of laws, including an immunity bill for Netanyahu and vetoing the Supreme Court’s ability to intervene in the prime minister’s case.
 
In the worst-case scenario, there could have been a wild game of chicken in which either the Knesset blocked Mandelblit from indicting Netanyahu and blocked the Supreme Court from intervening, or where the Supreme Court might have tried to veto the Knesset’s new laws limiting its authority.
 
Who would have blinked? Would it have meant the end of the separation of powers as we know it? Would it have led to a general strike, mass resignations (former chief justice Aharon Barak said he would have resigned in such a case, if he were still serving) and some kind of civil uprising?
 
Now this scenario probably cannot happen, simply because of the calendar – there is no reason to expect that a new government will be formed any earlier than November.
 
Even rapidly passing new uncontroversial laws can take weeks if not a few months. So any new major laws will not be passed until December if not later.
 
Netanyahu’s pre-indictment hearings are set for October 2 and 3, and will not be postponed, because Mandelblit already agreed to postpone them from July 10. Also, he made his initial announcement of an intent to indict Netanyahu for bribery dating back to February 28.
 
Even more importantly, Netanyahu until now always had a strong argument to delay his pre-indictment hearing because the other defendants in his cases also wanted more time to prepare for their hearings.
 
But the other defendants’ extensions from July 10 were only until August 15. So by October 2-3, their process will already be concluded, and Netanyahu will have already gotten around two extra months to prepare. This will make it harder to ask for more extensions.
 
Mandelblit has also never moved fast against Netanyahu – the Left believes he delayed the cases against the prime minister for more years than necessary – but has never been willing to let elections give the prime minister more time.
 
This was notable in his announcement against Netanyahu in February, at the height of election season. It was also clear in his public fight with Netanyahu’s lawyers over the date of the pre-indictment hearing, as (the now failed) negotiations to form a new government were moving at full speed.
 
Also, State Attorney Shai Nitzan’s term is set to end in December, but with new elections, he may very well get his term extended, since a transition government cannot appoint a permanent replacement.
 
Regardless, if Mandelblit was considering issuing a decision either by December, before Nitzan was expected to leave, or by February 2020, so that his final decision would be within one year of the initial announcement, he will probably lean toward December.
 
Mandelblit was not going to rush faster than the usual process and try to make a final indictment decision before the Knesset could pass an immunity law and veto the Supreme Court laws. But now that he can move at a standard pace and make the final indictment decision before a new Knesset passes laws that limit the power to prosecute Netanyahu, he will probably grab the chance to get in under the wire – he can say he waited nearly 10 months from the initial decision, and still issue a final indictment against Netanyahu before the new laws are passed.
 
So new elections are unquestionably worse for Netanyahu from a legal perspective, but may spare the country a constitutional crisis between the different branches of government.


Sara Netanyahu is far luckier, and maybe even benefited yesterday from the election mess.
 
In 2015 she faced as many as seven possible cases against her, which collectively could have led to some real jail time. Mandelblit is viewed by the legal establishment as having acted favorably toward her by closing six of the seven cases without an indictment.
However, in June 2018, the attorney-general filed an indictment in the seventh case, the “Prepared Food Affair.”
 
The case alleged that from September 2010 until March 2013, Netanyahu acted in coordination with former Prime Minister’s Office deputy director-general Ezra Seidoff to falsely misrepresent that the Prime Minister’s Residence did not employ a chef.
 
According to the allegations, which Sara admitted to on Wednesday, she and Seidoff made misrepresentations to circumvent and exploit regulations so they could obtain state funding both for the chef at the residence and for prepared food orders.
 
The indictment stated that the two fraudulently obtained NIS 359,000 from the state for hundreds of prepared food orders.
 
However, Netanyahu is admitting only to a reduced charge of intentionally exploiting another person’s error, in place of the original more serious charge of fraud. 
 
Also, she will pay only a reduced fine of NIS 55,000 – down from the original charge of NIS 359,000 – and will get no jail time.
 True, Netanyahu’s lawyers had been able to show that some of the NIS 359,000 were legitimate funds spent on hosting ambassadors. But the reduction still came out far above NIS 55,000.
 
 The State Prosecution gave no explanation why it accepted such a heavily reduced fine in the deal. But it did not need to.
 Sara Netanyahu may have been the flagship case for the State Prosecution, having caused huge political waves when Mandelblit announced a likely intent to indict her in September 2017. But in May 2019, almost no one commented on it, both because of the second election debacle and because a much bigger fish – her husband, the prime minister – is in play.
 
Sara Netanyahu’s June 2018 indictment came as Case 4000 against the prime minister broke open, and one could immediately see the air let out of the case. Mandelblit and his personal spokesman did not even bother dealing with it from that point on, delegating it to lower levels.
 
 And so, if there was one winner from the do-over election fiasco and from Benjamin Netanyahu’s personal legal woes, ironically, it was his wife.


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