After latest leaks, can AG avoid indicting Netanyahu?

Attorney-General Avichai Mandelblit may be running out of reasons not to indict Prime Minister Benjamin Netanyahu.

By YONAH JEREMY BOB
Updated: JANUARY 25, 2018 03:54
Avichai Mandelblit (photo credit: MARC ISRAEL SELLEM/THE JERUSALEM POST)
Avichai Mandelblit
(photo credit: MARC ISRAEL SELLEM/THE JERUSALEM POST)
Attorney-General Avichai Mandelblit is in a rough spot.
He may even be regretting that he did not remove himself from decisions regarding the prime minister’s corruption probes due to their prior close working relationship.
But after Channel 10 late on Tuesday leaked an exchange between Benjamin Netanyahu and billionaire Arnon Milchan, in which the prime minister asked Milchan if he brought cigars when he asked for help to extend his work permit, Mandelblit may be running out of reasons not to indict the prime minister.
Sources close to Mandelblit have been clear in the past to The Jerusalem Post that he was unlikely to indict Netanyahu and possibly bring down the government due to a borderline case about champagne and cigars.
Yet, if the Netanyahu-Milchan exchange happened as reported, the case will have shifted to being a lot more clear-cut as justifying an indictment in the “illegal gifts affair” – if that was not already the case.
We may now be able to divide the case into three phases. At first, the debate was only over whether the prime minister had received overly generous, and therefore illegal, gifts from tycoons such as Milchan.
Once the police brought on former Netanyahu chief of staff Ari Harow as a state’s witness, police leaks appeared to start crowing that they could prove quid pro quo and the more serious charge of bribery.
That was phase two.
But even as many in the media declared Harow becoming a state’s witness as the nail in the coffin for Netanyahu, sources close to Mandelblit implied that the proof of quid pro quo was still up in the air and the case was still borderline.
If Michan asked Netanyahu about the status of his request for a US visa that the prime minister was allegedly trying to help him with, and Netanyahu responded asking him about replenishing the supply of expensive cigars Michan had been giving him, we may have hit phase three.
Making a direct connection between a visa request and a cigars request in the same conversation could be rock solid proof of quid pro quo and bribery.
WHY, if the leak is true, could there still be wiggle room for Mandelblit to close the case? First, we may be missing context.
Maybe visas and cigars came up in the same conversation, but maybe several other things came up in between. If the in-between part is seen as substantive, it could be a disconnect between the visas and the cigars parts of their talk. Disconnect means no quid pro quo.
Maybe the exact wording Netanyahu used was playful enough that he can claim he was joking or playing a game as he has claimed in the separate “media bribery affair.”
These exact issues came up in the trial against former prime minister Ehud Olmert and in other major trials, and these little points of context can derail and have derailed whole cases.
There is even a set objection where criminal defense lawyers force prosecutors or prosecution witnesses to read longer portions of what seems to be an incriminating passage in order to provide context.
Also, the latest leak is reportedly from Harow. But all indications are that at trial, even if Harow provides quotes and details, if asked whether he believes Netanyahu committed crimes, he will likely side with Netanyahu’s interpretation of events.
Suddenly, a seemingly airtight quid pro quo exchange could become muddled in debates about context and the fact that the witness providing the statement does not view it as incriminating.
All of this could get Netanyahu an acquittal at trial.
But Mandelblit’s problem is he is not a judge.
If the leak is true, what would exactly be the point at which the prosecution decides to indict and let a judge decide whether the contextual nuances prove guilt or not? The above-mentioned “outs” for the prime minister are typically potential outs from conviction, not from an indictment.
A decision to indict faces a standard that is not easy to meet, but it is not as high as the beyonda- reasonable-doubt standard of a court.
The Post learned that portions of the prosecution disagreed with Mandelblit’s announced intent to indict Sara Netanyahu in only one of seven criminal affairs. Whatever his views, he may find it much harder to walk away from the prime minister’s case in light of the latest alleged evidence.