Analysis: Olmert’s attorneys pull off legal magic

Olmert, if he beats every case against him, may earn the nickname “magician.”

Former PM Ehud Olmert after verdict 370 (photo credit: Emil Salman/ Pool)
Former PM Ehud Olmert after verdict 370
(photo credit: Emil Salman/ Pool)
No moral turpitude for former prime minister Ehud Olmert – for now.
That was the shocking last-minute twist in Wednesday’s sentencing hearing in the Olmert corruption trial.
The legal war machines were revved up, guns (bombastic lawyerly rhetoric) ready to blaze, bombs (legal precedents) ready to drop, troops (lawyers) ready to do battle.
Then it all evaporated with a whisper.
The pre-game show had foreshadowed another all-out no-holds-barred battle between the former prime minister’s legal team and the state attorney, who do not like each other.
Letters and overwrought metaphors of improper conduct were flying between the two sides on Tuesday, the eve of the hearing.
Olmert’s lead attorney, Eli Zohar – who depending how this turns out could also be nicknamed “the magician” – struck preemptively, telling the state through the press that it did not need to seek a finding of moral turpitude, because Olmert was ready to waive all of his public benefits as a former prime minister.
Just as suddenly the state shot back that it was immovable on the issue. It would not relent under any circumstances from seeking the finding since the only thing that mattered was that Olmert’s actions fulfilled the elements of moral turpitude.
That was until this morning when the state relented.
What changed overnight, legally speaking? Nothing.
What changed in that X factor surrounding high-level litigations, like those involving a former prime minister, was that the state got over its knee-jerk reaction of being shown up publicly and realized it had been outmaneuvered.
If it pushed forward with seeking moral turpitude it might be walking into a trap, running smack into one of cardinal principles of law.
Judges are not supposed to – and by nature heavily dislike to – make a theoretical finding that has no concrete impact on the real world.
There are only two possible practical consequences of a finding of moral turpitude: losing previously earned public servant benefits and being barred from running for office for seven years.
Olmert said he would give up the benefits and... he is already out of office. Maybe he’ll run in the future. But he hasn’t announced any intention to run now and there aren’t even elections happening now for which he could run.
This was the roadblock for the state. They would be asking judges to make a dramatic and controversial finding against a former prime minister, which has never happened before, with absolutely no concrete impact at the moment.
The state realized that judges who might rule for it if there was a concrete situation, might very well choose not to under these circumstances.
And then down the road if Olmert ran for office, the ruling would already be final.
But the state has already been thoroughly embarrassed in this case, and needed at least a finding of moral turpitude to justify having toppled a former prime minister.
So in the late hours of Tuesday night the state looked for a third way out.
It will maintain that it can ask for a finding of moral turpitude if Olmert should try to run for office down the road.
How it will do that is murky.
Some of it depends on whether he is given any other punishments, such as community service, and if some kind of unusual language is put into the sentencing order that leaves the issue of moral turpitude open, but even that is not necessary.
In theory, if Olmert ever tried to return, there are at least three ways the state could try to raise the issue in the future.
The most likely scenario would be that the issue could be considered by the electoral commission, which could prevent him from running with its own finding of moral turpitude or by seeking a ruling from the court.
Second, in theory, both the attorney-general and the district court on its own can reinitiate a court proceeding over the issue of moral turpitude for a member of Knesset, where no finding was originally made.
Olmert is not currently in the Knesset, but he was at the time of crimes for which he was convicted.
Finally, although there is no specific rule to this effect, there is the time-honored tradition of asking the High Court of Justice to intervene on just about anything.
But all of these potential roadblocks for an Olmert comeback are much better for him than fighting the battle in front of the court that convicted him, even if the “only” rulings it issued against him were a conviction of breaching the public trust and saying his conduct was improper.
From the monotone reading of the verdict in July and the absence of the kind of scathing criticism that the judge threw globally at Olmert and other defendants at the presentation of the Holyland indictment, Olmert might have beaten the moral turpitude argument anyway.
But now he has guaranteed that the issue, if it ever comes up, will come up at the time of his choosing – when he decides to comeback.
Moreover, he would likely only make a comeback if he beats the Holyland charges and after a public relations campaign crowning him as the returned hero who was wrongfully dethroned.
How quickly is the electoral commission, whoever is attorney-general at that point (who does not have the baggage of having to justify pushing Olmert out of office), the district court or even the High Court going to want to get in the way of that locomotive as it builds speed? How quickly when they would be asked to do something that, although permitted, is not standard procedure? (Moral turpitude is usually decided in the sentencing order because in most cases, the accused is still a public servant or is looking to make an immediate comeback like Tzachi Hanegbi.) Even if the issue is debated, any of those legal bodies can ask the state: why didn’t you seek moral turpitude at the sentencing? That is the best time to decide these matters. You can’t rewind the clock now, the state might be told.
That is the best case scenario that the state has been able to pull out for itself from Zohar’s magical legal ambush. And for that he – or Olmert, if he beats every case against him – may earn the nickname “magician.”