Why an immunity law is necessary for Israeli democracy

The Israeli legal and legislative establishment should set aside their political agenda and any personal animus against Netanyahu.

By SHOULA ROMANO HORING
July 4, 2019 21:48
Benny Gantz and Benjamin Netanyahu at swearing in of 21st Knesset

Benny Gantz and Benjamin Netanyahu at swearing in of 21st Knesset. (photo credit: MARC ISRAEL SELLEM)

For the last two months, Israelis have been subjected to fear-mongering and doomsday scenarios that passing an Immunity Law, to shield Prime Minister Netanyahu from the possibility of criminal charges while in office, will be the death knell for Israeli democracy.
However, unlike in Israel, the reality is that in most Western democracies a sitting head of the Executive Branch is immune from criminal indictment or prosecution in criminal courts while in office, including in the presidential and parliamentary systems of the US, France, Britain, Germany, Canada and Australia, with the sole purpose of protecting democracy by shielding the national leader’s capacity to perform his duties under the mandate granted him in a national election.
 
On May 26, US Special Counsel Robert Mueller, who was appointed to look into alleged collusion between the Trump campaign and Russia, reiterated the view of most legal and constitutional scholars in the US, that a sitting president is constitutionally immune from criminal indictment and criminal prosecution. Mueller cited guidance from the Office of Legal Counsel division within the Justice Department as part of his decision not to charge Trump with obstructing justice.
 
The Israeli legal and legislative establishment should set aside their political agenda and any personal animus against Netanyahu and try to follow the reasoning behind the four-decade-old policy, set by the legal establishment, in the greatest democracy in the world.
 
Two memos authored by the Office of Legal Counsel, one in 1973 in the middle of the Nixon impeachment saga, the other in 2000, on the heels of the Clinton impeachment saga, seem to agree on the reasons of why a sitting president is and should be immune from criminal indictment.
 
Both OLC memorandums ultimately concluded that criminal proceedings, indictment, or criminal prosecution against a sitting president would be unconstitutional and barred by the Doctrine of Separation of Powers. The doctrine states that a separation of power between the legislative, executive and judicial branches of government is the main characteristic of a democratic government. The purpose is to provide a vital system of checks and balances between the three branches with assigned different tasks for them to share power and to prevent an abuse of power by one branch.
 
The legal memorandums explained that as a consequence of the personal attention that a defendant must, as a practical matter, give in defending himself, and the necessity to appear physically in a criminal trial, criminal proceedings against a president in office should not go beyond a point where they could result in a “serious physical interference with the president’s performance of his official duties that it would amount to an incapacitation.” Much more, it noted that a criminal proceeding involving serious criminal offenses including a trial and an appeal from a criminal trial could drag out for months or years.


THE MEMORANDUM explained that the duties of a modern president have become so burdensome with a unique leadership role, that a president may not be able fully to discharge the powers and duties of his office in such a situation.
 
It further explained that ‘‘the president is the symbolic head of the nation. To wound him by a criminal proceeding is to hamstring the operation of the whole governmental apparatus, both in foreign and domestic affairs.” Much more, it noted that “the spectacle of an indicted president still trying to serve as Chief Executive boggles the imagination,” given the realities of modern politics and mass media. The memorandum concluded that such appearance would be “uniquely destabilizing to an entire branch of government” and unnecessarily political and it would confer upon a jury of 12 the power, in effect, to overturn a national election.
 
Israel’s attorney-general announced in February, shortly before the April 9 national elections, that his office is considering indicting Prime Minister Benjamin Netanyahu on corruption crimes of one count of bribery and three counts of breach of trust. The criminal proceeding of such serious crimes, which can lead to jail time, could require the protracted personal involvement of Netanyahu in trial and this will physically interfere with his many serious assignments as prime minister.
 
Netanyahu is the head of the executive branch in Israel, responsible for the security, welfare and the survival of the Jewish state, surrounded by many vicious enemies dedicated to destroying it. In addition, he is facing another national election, which he attempted to avoid, that is set for September 17, while his pre-indictment hearing, which he intends to personally attend, is set for October 2-3.
 
Moreover, the prime minister is a symbol of the Jewish state and world Jewry which have been under attack by an ongoing campaign of defamation, delegitimization, boycotts and a wave of violent antisemitism worldwide not seen since the Holocaust. The most harmful mythical stereotype since the Middle Ages has been of the conniving, greed, money grubbing, immoral Jew. Imagine how a Jewish prime minister being tried for corruption and fraud in the age of social media would be weaponized and used by many antisemites and be politically and diplomatically destabilizing.
 
But even worse, while a jury of 12 citizens would be the judge for a US president, in Israel, in the absence of a jury system, the judges, which belong to the judicial branch, will be the ones in effect deciding whether to overturn a national election. Such an action would make one branch, the only unelected one, all powerful and the king maker. Overturning national election results will lead to a constitutional crisis for voters, who after hearing the announced charges, made the decision to again give Netanyahu a mandate to be the prime minister. The fact that a main part of Netanyahu’s public agenda is the judicial reform of the court system could likely prejudice a court against the prime minister.
FOR THOSE who will argue that an immunity law should not pass since Israel does not have the impeachment process similarly to US to get rid of a corrupt leader, it is important to know that in the last 230 years of American history there were only two presidents to be impeached by the House of Representatives, Andrew Jackson and Bill Clinton, who both were acquitted by the US Senate when the two-thirds majority necessary for conviction did not exist. The reasoning has been that removing a nationally elected president while in office should pass a very high bar and be judged by the elected legislative branch, who are in turn judged on Election Day by the voters.
 
The main problem with the attorney-general and the prosecutors’ conduct, concerning the prime minister as a defendant, is that they treat a him as they would have treat any ordinary person. But an elected national leader is not an ordinary person but the head of one of three branches chosen by the voters in a national election.
 
This is why the elected legislative branch should take the responsibility of passing the immunity law while adding a mechanism by which the Knesset, similar to the US Congress, will be able to remove a prime minister with a two-thirds majority, or otherwise have a new election and let the voters make the final judgment.

The writer has been a criminal attorney and a law professor for the last 26 years in Kansas City, Missouri. Her blog: www.shoularomanohoring.com


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