Benjamin Netanyahu: Will he be forced out, what will his trial look like?

Avichai Mandelblit clearly took Netanyahu’s side – or at least he pushed hard to keep himself out of the discussion of forcing Netanyahu out.

By YONAH JEREMY BOB
ATTORNEY-GENERAL Avichai Mandelblit faces a decision that not only will determine his career, but also the trajectory of the state. (photo credit: MARC ISRAEL SELLEM)
ATTORNEY-GENERAL Avichai Mandelblit faces a decision that not only will determine his career, but also the trajectory of the state.
(photo credit: MARC ISRAEL SELLEM)
Will he be forced out as PM and what will his trial look like?
Whether the legal establishment will force Prime Minister Benjamin Netanyahu out of office and how his future trial will look all came into clear focus over the last week.
Regarding whether Netanyahu will be forced from office, we need to rewind to August 2008.
Then-prime minister Ehud Olmert was desperately holding off the police from proceeding too speedily in the cases against him – postponing some police interrogations and shortening others.
This was all to put off the day when they might recommend indicting him and when he might have to confront being forced from office.
But one journalist then tried to push Olmert out for delaying the police. The journalist petitioned the High Court of Justice to declare him “incompetent” to perform his duties, while keeping up with his duty as a suspect to cooperate with the police investigation.
Why should anyone care about this ancient history?
Because Attorney-General Avichai Mandelblit cared about this old High Court battle. On Monday, he jaw-droppingly swatted anyway any possibility of getting Netanyahu out of office using legal means for the foreseeable future.
Those supporters of Netanyahu who condemned Mandelblit and the state prosecution as traitors after the attorney-general issued a final indictment against Netanyahu, must have had a double-take last week.
Critics of Netanyahu, who were ready to foist Mandelblit on their shoulders as their hero who took down the unbeatable “King Bibi,” must have been scratching their heads.
But all of this makes sense once you look at the August 2008 High Court ruling, which Mandelblit cited on Monday as a basis for declining to push Netanyahu out of office.
Mandelblit cited the ruling because the court rejected the attempt to push Olmert out of office, stating that whether a prime minister is “incompetent” to fulfill his duties is a political and public sector issue.
He then turned around and said that the 2008 decision set a precedent, making him powerless as attorney-general to force Netanyahu out because the High Court itself had said that defining a prime minister as “incompetent” was a political and public sector issue.
This was a fascinating legal move, which probably forecasts how he and the High Court will handle the question of using the law to force Netanyahu out of the prime minister’s seat.
It’s fascinating because although Mandelblit acted as if the 2008 High Court decision gave him only one path – staying away from forcing Netanyahu out – that is not at all what the decision says.
First, yes, Mandelblit is correct that the decision rejected the specific attempt to force Olmert out.
However, the High Court also specifically said that both it and the attorney-general absolutely could declare Olmert incompetent to continue serving in the future, and threatened Olmert with exactly that result if he continued to drag his feet with the police.
True, the court said such intervention would be an exception of exceptions. Moreover, they said that it was preferable that the issue be resolved politically. But the court was very clear that the law could be used to force out Olmert.
Secondly, it is just as important what the decision does not address.
It does not address a prime minister who the police have recommended to indict, who has gotten his pre-indictment hearings and who has finally been indicted by the attorney-general: This is Netanyahu’s situation.
And the High Court never had to address that context anyway, because Olmert resigned on his own long before it came to that point.
Mandelblit could have easily ruled that, unlike Olmert, who was merely at the stage of being questioned by police, Netanyahu was “incompetent” because he was much worse off by having been clearly indicted – and for bribery no less.
Or, he could have said that due to this difference between the two cases, the law was unclear and that he would defer to the High Court.
Instead, Mandelblit clearly took Netanyahu’s side – or at least he pushed hard to keep himself out of the discussion of forcing Netanyahu out.
In addition, he made it nearly impossible for the court to force out Netanyahu.
Of course, technically the High Court could override the attorney-general.
However, on an issue of this magnitude and where the law is unclear, the High Court was unlikely to have forced Netanyahu out unless it felt the entire legal establishment was calling for that result in a unified voice.
Mandelblit’s strong push against legal involvement in forcing Netanyahu out has erased any possibility of such unity. This also means that the High Court will likely do all it can to avoid sticking its neck into the issue.
In fact, a three-justice panel of the court, which included two moderate liberals – Menachem Mazuz and George Kara – had already rejected a petition to force Netanyahu out. The justices specifically wanted to first hear what Mandelblit thought before weighing in.
IN ALL LIKELIHOOD, either Netanyahu will be removed from office at the polls, or he will go to trial as a sitting prime minister.
What will that trial look like?
Mandelblit’s final indictment – issued last week – also tells us quite a few new things about that.
First, it has become clearer that there are not three former aides who turned star witnesses against Netanyahu, but only one – Shlomo Filber.
If some thought that the August 2017 signing of Ari Harow as a state witness was a decisive turning point, The Jerusalem Post was correct in predicting at the time that it was not.
Harow is barely mentioned in the final indictment. In many of the areas where he is mentioned, it is in a passive fashion.
He was present for the key conversation of December 4, 2015, between Netanyahu and Yediot Ahronot owner Arnon (Nuni) Mozes, which is at the heart of Case 2000. But there is nothing in the indictment suggesting that Harow has pointed or will point the finger at Netanyahu as having committed a crime.
Rather, he can confirm the facts of what occurred. He can confirm some talks he had with Knesset members to potentially move forward a bill to help Yediot at the expense of Yisrael Hayom and can confirm one instance of an expensive gifts transfer in Case 1000 between Arnon Milchan and Netanyahu.
At most though, the indictment indicates that Harow might testify about being uncomfortable or disagreeing with some of Netanyahu’s strategies.
Nothing suggests he will accuse Netanyahu of committing a crime. To the contrary, all indications point to him possibly pushing back and asking why other politicians besides Netanyahu, who may have close dealings with the media, were not targeted by the police.
Some of what Harow says will build details of the case against Netanyahu. There does not appear to be a smoking gun, and some of what he may say will likely even help Netanyahu.
A second close adviser turned state witness, Nir Hefetz, is mentioned voluminously in the final indictment – far more than Harow – especially with regard to Case 4000, the Bezeq-Walla Affair.
Netanyahu’s lawyers succeeded in doing a job on Hefetz during the pre-indictment hearings. His poor memory has been attacked. And he has admitted to a penchant for acting to help Netanyahu even beyond what he might be asked to do. Add those together with the problems of potential police psychological abuse to get him to turn, and his credibility is deeply wounded.
Additionally, footage of Hefetz basically accusing a magistrate’s court judge of wanting to kill him when the judge permitted media coverage of an embarrassing issue for Hefetz, foreshadows that he may likely crack dramatically at trial.
The key witness against Olmert in the Holyland trial, Shmuel Duchner, complained at various points that the ferocity of the cross-examinations and planted media stories against him were impacting his health.
Most people brushed this off as Duchner simply not enjoying being under fire.
That was until Duchner died suddenly in March 2013, almost causing a mistrial and nearly leading to Olmert’s acquittal.
Hefetz is younger than Duchner and hopefully will hold up better. But, it would not be surprising if he is hospitalized at some point during the trial.
A close eye will need to be kept on the gag order on details which could embarrass Hefetz and whether Netanyahu’s lawyers or others try to skirt the order.
Hefetz as a witness will still hurt Netanyahu by pointing the finger and by providing voluminous text messages and other documents seeming to show a bribery conspiracy by the prime minister and attempts to cover it up. And Hefetz will testify that the prime minister ordered him not to pass on any instructions from Sara or Yair Netanyahu to Walla without him reviewing their ideas first.
THE REAL star of the show will be Shlomo Filber. His June 2015 meeting with Netanyahu was the key moment which convinced the police, and later Mandelblit, to indict the prime minister.
Filber will testify that the meeting with Netanyahu started with everyone in a celebratory mood over the election win. Netanyahu then told Filber that they would continue talking real business on the couch as he smoked a cigar.
Filber will testify that during this conversation, Netanyahu raised two primary issues for him to assist with Bezeq in his new role as Communications Ministry director-general (after Netanyahu fired Avi Berger from that job for opposing attempts to help Bezeq).
One was approving the Bezeq-YES merger, which is at the heart of Case 4000. The second was moderating price changes and competition against Bezeq.
In all of this, Filber will say that Netanyahu made clear to him that he wanted to help his ally Shaul Elovitch, owner of both Bezeq and Walla.
The crux of Case 4000 – the key case against Netanyahu – is the allegation that he pushed through policies to make Elovitch more than NIS 1 billion in exchange for Elovitch ensuring that he got positive coverage at Walla.
Filber has told police that Netanyahu’s instructions to him went as follows: “Don’t completely annul the [new] competition [against Bezeq], but see what can be done about the pricing [issue], maybe to moderate it or roll out [the reforms against Bezeq] over a longer period.”
“I also understand that the Bezeq-YES merger needs to be completed to keep Elovitch happy,” Filber will say he was told.
“What did you understand from this?” police asked Filber, according to Channel 12.
“That there was the situation with Bezeq-YES, that it needed to be handled and completed,” Filber responded. “You don’t need to ask him by when – because I knew this was my job… I understood that there was a kind of deadline.”
Filber added to the police that after his meeting with Netanyahu, one of the prime minister’s top allies on the issue in the communications ministry, Eitan Zafrir, sent him a message, asking: “Is there going to be an approval soon [for the merger]? [I’m right that] you’ll approve it? Find a way to approve it.”
Netanyahu had already injected Zafrir into a top position at the Communications Ministry on December 9, 2014. Filber (and possibly Berger and others) will testify that this was an attempt to get Berger to do what Filber would later do to help Elovitch.
Filber will testify that even before he met with Netanyahu in June 2015, to finalize his duties to help Elovitch, Zafrir had already initially briefed Filber in May about these issues.
Filber has told police that, in his heart of hearts, “it was clear to me that this merger would be a national disaster,” and yet he made sure it was approved.
Netanyahu will testify that Filber acted on his own and that he was blaming the prime minister to help his own case with the prosecution.
He will argue that all the decisions on the Bezeq-YES merger were approved by apolitical regulators who were not subordinate to Filber or Netanyahu.
Furthermore, he will testify that the reforms which took place that made Elovitch and Bezeq lose billions of shekels occurred while he was communications minister.
But Filber and others will testify that he was twisting arms behind the scenes – along with Zafrir and top Netanyahu aide David Sharan – so that the prime minister would get his way.
Case 1000 has always been a borderline case and would likely not yield jail time by itself.
Case 2000 started off much more seriously. At this point, it is only a breach of trust case as regards to Netanyahu, and the prime minister has a solid chance of beating the charges in court.
However, unless Netanyahu figures out a way to get under Filber’s skin like he did with Hefetz, Case 4000 could lead to significant jail time and prove to be his downfall.