It’s the judiciary, stupid

The main outcome of the approaching election will likely be a constitutional crisis of a sort Israel has never faced.

By
March 29, 2019 13:27
It’s the judiciary, stupid

Prime Minister Benjamin Netanyahu (center) takes Senator Lindsey Graham and US Ambassador to Israel David Friedman on a tour of the Golan Heights on March 11. (photo credit: RONEN ZVULUN / REUTERS)

 
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“Power tires only those who don’t exercise it,” said former Canadian prime minister Pierre Trudeau, a dictum vindicated by Benjamin Netanyahu as the early election he called approached. Unperturbed by the multiple criminal charges he faces pending a hearing, Israel’s longest-serving leader since David Ben-Gurion is reaching the Jewish state’s 21st general election – and his own seventh – as its author, editor, and hero, whether for better or worse. 
 
Never in Israel’s seven decades has an election been dominated by the issue that has come to define the election of 2019. 
Previous elections were generally about war, peace, the economy, or social affairs. Yes, there have also been elections overshadowed by corruption scandals, most memorably those that unseated Labor in 1977 and Kadima in 2009. Still, they were different from what is unfolding right now. 
 
The scandals of 1977 – Leah Rabin’s illegal foreign bank account; embezzlement revelations against Bank of Israel governor-designate Asher Yadlin, and the suicide of housing minister Avraham Ofer while probed for alleged bribery – dominated the election, but their protagonists did not challenge the system. If anything, Yitzhak Rabin’s resignation in response to his wife’s indictment saluted the system. 
 
Similarly, Ehud Olmert resigned before he was indicted for the bribery, fraud, and breach-of-trust charges that ultimately landed him in jail. True, Olmert unlike Rabin denied the charges he faced, but like Rabin he did not assault the system. 
 
Netanyahu’s response to his situation is entirely different. 


HAVING INITIALLY insisted that “there will be nothing because there was nothing,” Netanyahu learned on February 28 that Attorney-General Avichai Mandelblit doesn’t think “there was nothing,” and in fact intends to indict Netanyahu for alleged fraud, bribery, and breach of trust in three different cases. 
 
Well-prepared for that call, Netanyahu reacted with a bellicosity some doubted he still possessed. 
 
“Something terrible has happened here and it is hurting Israeli democracy,” he said hours after the Attorney General announced his decision. “The Left has embarked on a hunting campaign to unseat my government,” Netanyahu alleged in a speech to party activists.
 
Having previously tried that number against then-Israel Police chief Roni Alsheikh, Netanyahu now claimed that Attorney General Mandelblit had also surrendered to conspirators who resolved to unseat Netanyahu and replace him with Benny Gantz, leader of the Blue and White Party, which that evening was hardly one week old. 
 
Netanyahu went on to map a plot whose engineers are also after his wife Sara and their son Yair, and whose main engines – three of the prime minister’s former aides who became state’s witnesses – all lied in order to save their own skins. 
 
Finally, Netanyahu zeroed in on two senior members of the judiciary, State Attorney Shai Nitzan and the advocate in charge of Netanyahu’s investigation, Liat Ben-Ari, referring to them as “two prosecutors who pressured to indict me.” 
 
Concerning Ben-Ari, Netanyahu asked how she could seek his indictment during an election season, after having delayed in 2013 a probe involving Tzipi Livni citing an approaching election. Concerning Nitzan he cited a 2015 court ruling that reprimanded Nitzan for being hard on right-wing inciters and lenient on their left-wing inversions. 
 
The attorneys responded that Netanyahu distorted both cases, the first by suggesting Livni was a suspect, which she was not, and the latter by failing to mention that the District Court overturned the Magistrate Court ruling Netanyahu cited. 
 
That Netanyahu’s conspiracy theory fantastically lumps together the judiciary, the media, and the civil service has made no one in Likud publicly question it, just like no one there will say anything about the fact that the alleged plot’s main tools, Mandelblit and Alsheikh, were Netanyahu’s own appointments. 
 
Not only within Likud, but also across Netanyahu’s conservative coalition no one challenged his claim that the system is hounding him. From the ultra-Orthodox to their archrival Avigdor Liberman, Netanyahu’s allies say that given a choice between him and Gantz they will back him. 
 
New Right candidate Caroline Glick said she thinks the legal system is indeed after Netanyahu. Referring to the timing of Mandelblit’s announcement, she told Makor Rishon: “I don’t know why this was so urgent when it was clear that this will become a campaign issue.” 
 
Netanyahu’s opponents say of that charge that the one who manipulated the timetable was Netanyahu, when he moved the election seven months forward. Mandelblit said all along that his timetable would not be affected by the political calendar. Indeed, the two schedules’ collision might have been softer had the election been held on its original date. 
 
Right or wrong about his takes on the Attorney General, Netanyahu’s response to his call spells a major clash between the executive and judicial branches. That clash is what this election is about. 
 
The clash of branches that is already underway may well mushroom into a full-fledged constitutional crisis, both morally and politically. 
 
Morally, if he wins the election Netanyahu might claim that the voters – having voted knowing of his pending indictment – overruled the judiciary. Politically, in cobbling together a new coalition Netanyahu might demand its members to back a bill that makes it illegal to try a sitting prime minister. 
 
There are two scenarios whereby such a constitutional crisis is prevented – one electoral, the other political. Judging by polls, both seem like long shots. 
Benny Gantz, head of the Blue and White Party, visits Kibbutz Kfar Aza near the Gaza Strip on March 13 with party candidates Gabi Ashkenazy and Moshe Ya’alon. (Amir Cohen/Reuters)


THE ELECTORAL long shot is that Netanyahu will suffer a decisive defeat. 
 
Such a defeat would transpire if Blue and White will win a good ten seats more than Likud, a gap that would effectively make it impossible for Netanyahu to form a coalition with his conservative allies. 
 
However, the same polls that consistently suggest Blue and White will surpass Likud, winning between 30 and 35 of the Knesset’s 120 seats as opposed to 27-30 for Likud, show equally consistently that Netanyahu’s conservative coalition is garnering 4-10 seats more than the rest of the parties. 
 
This is beside the fact that the seats outside Netanyahu’s fold include the two Arab parties, which Gantz has already said he will not include in his prospective coalition. 
 
In sum, what has so far happened, even after Gantz’s deployment of key Likudniks, including former defense minister Moshe Ya’alon who thinks the West Bank needs another million Jewish settlers, has not shifted voters from right to left. Instead, Blue and White has merely rearranged the votes within the anti-Likud bloc, with Gantz welding Yair Lapid’s electorate with more than half of Labor’s voters. 
 
Surely, the polls can be wrong, and events up to Election Day are unpredictable, as is their electoral impact. Even so, the more realistic scenario for the prevention of a constitutional crisis lies not in how Right and Left measure up, but in what might happen within the Right. 
 
There are three weak links, from Netanyahu’s viewpoint, in his seemingly circled wagons. The first is Finance Minister Moshe Kahlon, and his Kulanu (“All of Us”) faction, even though it is forecast to lose up to half its 10 Knesset seats. 
 
Kahlon is on record for refusing to sit in a Netanyahu government if he is indicted. That coolness toward Netanyahu and his situation might intensify once the election is over, and make Kahlon gamble on Gantz. 
 
The other weak links are Education Minister Naftali Bennett’s New Right, and potential renegades within Likud’s future Knesset faction, most notably former education minister Gideon Sa’ar. 
 
No, these elements will not defect to Gantz, but they might demand that Netanyahu step aside and dedicate his time to handling his legal situation, and until then let someone else lead Likud. In such a scenario, Likud and Gantz may form a broad, and very workable, coalition. 
 
Both Bennett (46) and Sa’ar (52) have unsettled accounts with Netanyahu, and each sees himself as his rightful heir. The opportunity of emerging as champions of clean politics without damaging the Right’s grip on power might prove for them too tempting to resist. 


Another scenario whereby Netanyahu steps aside would be if some sort of father figure he admires would tell him to do so. 
That is what happened with then-president Ezer Weizman in 2000, when he faced revelations about unreported payments he received regularly from a private businessman while serving as a lawmaker and minister. Weizman ignored the revelations until his predecessor as commander of the air force Dan Tolkowsky, now 98, and back then one of Israel’s most respected businessmen, met Weizman privately and ordered him to resign. Weizman summarily did as he was told. 
 
Tolkowsy’s equivalent in Netanyahu’s situation might have been former foreign minister Moshe Arens, who was universally respected as a moral politician, and was also the man who sparked Netanyahu’s political career when he made him ambassador to the UN. Unfortunately, Arens passed away in January. 
 
The other person who might have played this role was Netanyahu’s father, Benzion, but he passed away seven years ago. With that pair gone, there seems to be no one who can persuade Netanyahu to voluntarily step aside and avoid the clash he is fomenting between the executive and judicial branches. 
 
That is why this election is about Netanyahu, and that is why the poll’s most important result is set to be a constitutional crisis of a sort Israel has never faced. 
 
Having said this, two more trends can be expected to surface the morning after the votes are counted. The first is the political meltdowns of religious Zionism and the Labor Party; the second is the evaporation of the Russian vote. 
 
Labor, the movement that dominated the Zionist enterprise from 1931 to 1977, and then rivaled Likud for another quarter of a century, is predicted to lose nearly two-thirds of its current 24 Knesset seats. 
 
Such marginalization, if indeed it transpires, would reflect widespread disillusionment in the middle class with the Oslo vision on which Labor gambled a generation ago. 
 
Religious Zionism lost its leader, Naftali Bennett, who abandoned it and established a secular party. The remainder of the party has teamed up with Meir Kahana’s disciples, thus shedding the historic “Mizrachi” movement’s revulsion with racism. 
 
Bennett’s move reflects many modern-Orthodox Israelis’ view that religious Zionism has realized its founders’ goals, as the government observes the Sabbath; matrimonial law and conversion are governed by the Chief Rabbinate; the IDF’s food is kosher; the government builds synagogues and ritual baths, and observant Israelis have broken all glass ceilings in the public service, having already headed the Israel Police, the Shin Bet, the Bank of Israel, the Hebrew University and whatnot. 
 
Finally, the election might leave Avigdor Liberman unelected, as polls indicate he is teetering on the brink of the 3.25 percent electoral threshold which, ironically, was his initiative, as he hoped it would shrink the Knesset’s Arab factions. 
 
If the voters indeed end Liberman’s 20-year Knesset career, they will effectively have said that the Moldovan-born politician’s original vow, to fight for the post-Soviet immigration, has spent itself, as that electorate has come to feel sufficiently Israeli to need no party of its own. 
 
Such a statement, should it be made, may be one happy side effect of an otherwise foreboding election. ■

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