Legal Affairs: Mandelblit-Netanyahu face-off nears final act

Charges will be filed, but the prime minister’s lawyers will try to water them down next week enough to save his political career

By
September 26, 2019 22:46
Prime Minister Benjamin Netanyahu (L) and Attorney-General Avichai Mandelblit (R)

Prime Minister Benjamin Netanyahu (L) and Attorney-General Avichai Mandelblit (R). (photo credit: MARC ISRAEL SELLEM/THE JERUSALEM POST)

It’s been a long time coming. But next week, Attorney-General Avichai Mandelblit will hold the long-awaited and officially scheduled pre-indictment hearings that are Prime Minister Benjamin Netanyahu’s last opportunity to head off a final indictment decision.

The goal of Netanyahu’s legal team on Wednesday and Thursday is not to erase the charges, but to convince Mandelblit to water them down.

Presuming that Mandelblit issues a final decision to indict the prime minister, it is highly likely that it will be made as negotiations over forming a new government are at their height.

This means that what those final charges are could heavily impact whether Netanyahu, Blue and White party leader Benny Gantz – or some new leader from the Likud who pushes out Netanyahu – becomes the next prime minister, and what the rotation arrangement might be.

If the country goes to a third election, the final charges could end Netanyahu’s political career, possibly even more abruptly than otherwise, as the Likud may dispatch him so they can run the campaign without the criminal cloud he will have cast over the party.

These political-legal implications are not the only ones, however.

In 2012, then-foreign minister Avigdor Liberman succeeded during pre-indictment hearings to convince then attorney-general Yehuda Weinstein to drop the main multi-million dollar fraud and money-laundering case against him and to only indict him in the small “Belarus Ambassador Affair.”

Though Liberman had to resign, the reduced charges made getting an acquittal and a return to office far easier.

The reduced charges also moved the case out of the district court down to the much friendlier magistrate’s court.

Anecdotally, the magistrate’s court is viewed as friendlier to politicians, since many of its judges have a strong chance of seeking promotion to the district court, with the support of politicians.
In contrast, most district court judges know that they will not be promoted to the Supreme Court and view themselves as having reached the top job that they will ever have.

As an example, many cite the recent decisions of Jerusalem Magistrate’s Court President Avital Chen to pressure the prosecution into dropping the harshest charges against Sara Netanyahu and into a plea deal that did not even carry community service time, let alone jail time.

THE PRIME minister’s two main goals in the pre-indictment hearings are to try to convince Mandelblit to drop Case 2000 (the “Yediot Ahronot-Yisrael Hayom Affair”) and to get the charges in Case 4000 (The “Bezeq-Walla Affair”) reduced from bribery to breach of public trust.

To review, the police and the state prosecution wanted to accuse Netanyahu of bribery in all three cases against him.

However, Mandelblit overruled them twice.

He did accept their recommendations to announce an intent to indict Netanyahu for the more severe charge of bribery in the all-important Case 4000. But in cases 2000 and 1000 (the “Illegal Gifts Affair”), he went for mere breach of trust and fraud.

A bribery charge means the case would be heard in the district court. Breach of trust would go down to the friendlier magistrate’s court.

Netanyahu’s lawyers know that they have a sympathetic ear from the attorney-general regarding Case 2000.

Mandelblit has doubted this case from the start, viewing it as more of a public relations embarrassment for Netanyahu than as a criminal case that could be proven in court.

Ironically, it appears that testimony by Yisrael Hayom owner and long-time Netanyahu ally Sheldon Adelson, that the prime minister had pressured him to potentially reduce competition with Yediot Ahronot, was part of what swayed Mandelblit to indict.

Mandelblit also explained, in the announcement of an intent to indict, that Netanyahu’s failure to clearly reject Yediot owner Arnon (Nuni) Mozes’s alleged offer of a media bribery scheme, in and of itself constituted a breach of trust.

If Netanyahu has claimed he was just playing a game, Mandelblit responded in his February announcement that even playing such a game broke the law.

Now, Netanyahu’s lawyers will try to convince Mandelblit that this argument is too thin and will fail at trial.

They will add that the courts frequently acquit on breach of trust charges against politicians, as the entire concept behind it is still vague and undefined.

The prime minister’s lawyers will ask why he wants to cloud his stronger file, Case 4000, with a weaker one, where the alleged bribery scheme never actually went through anyway.

There is a high chance that Mandelblit will accept their argument regarding Case 2000.

If he drops the case, it would show that he came with an open mind to the pre-indictment hearings and would give greater credibility to any charges he sticks with to the end.

If he doesn’t, it will largely be because Case 2000 can be used to show a pattern of media bribery which culminated in Case 4000 – a case where the media bribery scheme allegedly did actually happen.

BUT GETTING Case 2000 dropped is not the biggest game for Netanyahu’s lawyers. Far more important for them, and for Netanyahu’s fate, is getting the bribery charge in Case 4000 reduced to breach of trust.

There are several scenarios where Netanyahu may still find himself before the Supreme Court, with the justices having to decide whether to force a sitting prime minister to resign who is under indictment, but who has not yet been convicted at trial.

No one knows how the Supreme Court would rule; the greatest legal minds suggest such a decision is 50/50 and so could go either way.

However, if the Supreme Court were to take upon itself to force Netanyahu from office, the only basis would likely be that he is accused of serious bribery, leading to around NIS 1.8 billion going to Bezeq and Walla Owner Shaul Elovitch in exchange for positive media coverage.

In fact, The Jerusalem Post learned as early as June 2018 that Mandelblit himself might not have gone forward with any of the cases except for the Case 4000 bribery charge.

If Netanyahu’s lawyers convince Mandelblit to reduce the bribery charge to breach of trust, this would probably end any realistic probability of the Supreme Court intervening.

They have a principle for forcing ministers under indictment to resign, based on the idea that these ministers cannot carry out their duties with the public’s faith when they are formally accused in court of breaking the law.

But since Knesset statutes only force a prime minister out once he is convicted, it is close to unthinkable that the Supreme Court would push Netanyahu out merely on breach of trust.

The key to whether Netanyahu’s lawyers succeed may be whether they convince Mandelblit that they can pick apart the all-important damning testimony of the prime minister’s former top aide turned state’s witness, Shlomo Filber.

One of the reasons Mandelblit may drop Case 2000 is that no one knows how Adelson will actually testify in court – and with health issues, he may even be able to avoid testifying altogether.

In contrast, Filber is expected to be a strong witness, and his freedom is dependent on him pointing the finger at Netanyahu.

This means that much of the legal fight next week will be about Netanyahu’s lawyers convincing Mandelblit that they can in turn convince a judge that Filber sold out to save his own skin under undue and improper duress, by police investigators who were desperate for a Netanyahu conviction at all costs.

FILBER TURNED against Netanyahu in February 2018, which was nothing short of an earthquake leading to an avalanche of changes.

It changed Mandelblit from a doubter into supporting indicting Netanyahu for bribery.

It led Nir Hefetz, another close Netanyahu adviser and confidante, to switch in a matter of days from staunch loyalist to becoming one of the state’s primary witnesses against the prime minister. Ultimately, it was probably the point that transformed the prime minister’s political and legal fortunes.

There are two narratives about why Filber’s transformation happened.

From July 2017 to February 2018, Filber denied wrongdoing and remained so loyal to the prime minister that even in November 2017, when it was announced that he would be indicted – and with no charges yet against Netanyahu – he did not turn.

Netanyahu’s lawyers are likely to argue, based on leaked portions of Filber’s testimony to police right before he turned, that Filber had accused the police of “a million-man race” to bring down Netanyahu by grabbing at anyone who was close to him.

Filber told the police that they would never have noticed him if they were not trying to bring down Netanyahu.

He also told the police that he and Netanyahu had done nothing wrong and accused them of trying to blackmail him into turning against his boss for no reason.

But Netanyahu’s lawyers will need to compete with the prosecution’s very different narrative about Filber.

When Filber turned state’s witness, it was leaked that what turned him was listening to recordings of Walla CEO Ilan Yeshua speaking to Elovitch about the scheme to skew coverage positively in the prime minister’s favor.

The Justice Ministry repeatedly refused to comment to the Post, and the leaks never clarified whether Filber was converted because he learned then for the first time just how wide the media bribery scheme was – or whether the recordings convinced him that the prime minister was done for anyway, and that loyalty would not save him from a jail cell next to his former boss.

According to a recent Channel 12 report, Filber confessed to the police, right after turning state’s witness, that it was as if a cloud had been lifted and that he could tell the truth for the first time in years.

Filber said he knew from the start that the prime minister’s orders to make policy changes in favor of Elovitch were a “national disaster,” but that he went along with it because he was caught up in the glory of his new title and power.

Whether Case 4000 goes to trial as a bribery case – and how the Supreme Court and the public relate to Netanyahu’s legal status – will likely turn on whether Netanyahu’s lawyers can get Mandelblit to blink about Filber’s credibility or whether the attorney-general doubles down.


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