Analysis: A tightrope ruling for Olmert

The Supreme Court will not want to be seen as a rubber stamp for the lower court and will want to show that it is ready to exercise its superior authority.

July 4, 2013 04:52
3 minute read.
Former prime minister Ehud Olmert.

Olmert looking concerned 370. (photo credit: Marc Israel Sellem/The Jerusalem Post )

There is a high likelihood that the Supreme Court, which has started to hear the state’s appeal of former prime minister Ehud Olmert’s acquittals, will focus its attention on the Talansky Affair, while upholding the lower court’s acquittal of Olmert in the Rishon Tours Affair.

Although in its appeal the state also asked the court to give Olmert a harsher punishment (code for a finding of moral turpitude to keep him out of politics) for his conviction for breach of public trust in the Investment Center Affair, the state openly indicated it knew this was likely a losing argument.

Almost comically, the state did not even offer any oral arguments on the issue, which led to a bizarre back and forth, with Supreme Court President Asher D. Grunis seemingly asking the state to take up the issue, and the state repeatedly declining.

What then is the likely result in the Talansky Affair? How might it impact Olmert’s chances to throw his hat back into the next race for prime minister along with the current shortlist of Prime Minister Binyamin Netanyahu and Finance Minister Yair Lapid? Most of the focus is on conviction (reversing the lower court) or acquittal (upholding the lower court’s decision) – with conviction ending Olmert’s career and acquittal providing full redemption.

But the Supreme Court could issue a ruling walking carefully down a tightrope that could mix the two.

What if the court convicts Olmert of breach of public trust, possibly even a minor count of fraud, in the Talansky Affair, reversing the lower court on the verdict, but still hands down a sentence short of a finding of moral turpitude? Before the lower court’s decision, few considered such a middle ground. Then the lower court essentially said that while Olmert was guilty, dethroning him from being prime minister and his years of legal fights were sufficient punishment.

The Supreme Court will not want to be seen as a rubber stamp for the lower court and will want to show that it is ready to exercise its superior authority.

And on the details, at least from Tuesday’s questions, some of the justices seem to view Olmert’s actions – receiving large amounts of cash in envelopes, not reporting them to the state comptroller, hiding them in his confidante Uri Messer’s secret safe and some of the funds completely disappearing – with even greater suspicion than the lower court did.

The above factors could lead to a conviction in the Talansky Affair, which would rack up at least two minor convictions against Olmert.

But the court appeared to be split on the issue, with some justices hitting the state hard as being too paranoid in its analysis of Olmert’s actions, and in what may be one of the most important rulings in its history, the court may work hard for a unanimous vote and some sort of compromise.

The justices sympathetic to the holes in the case against Olmert can tell those suspicious of Olmert that not only has he been dethroned as prime minister, but with the appeal dragging out the case (along with the Holyland case) he missed a second national election and essentially will have been kept out of politics for seven (possibly even eight) years – what would have happened with a finding of moral turpitude.

In that sense, the state’s appeal already worsened Olmert’s political position by an additional three to four years of suspension from politics from what it would have been simply after the lower court conviction.

Finally, a finding of moral turpitude really requires the judges to have a certain level of disgust for a defendant’s acts, beyond the particular criminal conviction.

While there were hard hitting questions for the defense on Tuesday, disgust appeared absent from the room.

So while two convictions with no finding of moral turpitude sounds like a strange result, it could fit a grand judicial compromise in a case with many competing considerations at stake.

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