The price of carelessly handling the Netanyahu bribery case - analysis

But for the laymen watching this trial from the sidelines, such a critical piece of information was fumbled in such a significant case screams out that something is wrong.

Former Israeli prime minister Benjamin Netanyahu arrives for a court hearing in his trial, at the District Court in Jerusalem on May 24, 2022. (photo credit: YONATAN SINDEL/FLASH90)
Former Israeli prime minister Benjamin Netanyahu arrives for a court hearing in his trial, at the District Court in Jerusalem on May 24, 2022.
(photo credit: YONATAN SINDEL/FLASH90)

Last January, former Supreme Court president Aharon Barak,  the uncontested champion of judicial activism and the man often referred to as the “Rebbe of the rule of law,” raised eyebrows when he went to bat for former prime minister Benjamin Netanyahu.

Barak, in the waning days of Attorney-General Avichai Mandelblit’s tenure, spoke to him about a possible plea bargain for Netanyahu. He later admitted that Netanyahu sent him on this errand.

This mission raised more than eyebrows; it also raised the hackles of those who previously adored Barak, but saw this move as nothing less than a sell-out to the former prime minister they detested. How could Barak dare do the bidding of the man who they were convinced was not only guilty of all the crimes accused, but also of undermining the rule of law in the country.

Or, as former prime minister and Netanyahu-hater Ehud Barak said in a Channel 13 interview, this appeal to Mandelblit was nothing less than an “eclipse” of Aharon Barak’s greatness and evidence of his “moral collapse.”

Nothing less.

Former Chief Justice of Supreme Court and holocaust survivor Aharon Barak at the President's residence in Jerusalem, on April 4, 2021. (credit: YONATAN SINDEL/FLASH90)Former Chief Justice of Supreme Court and holocaust survivor Aharon Barak at the President's residence in Jerusalem, on April 4, 2021. (credit: YONATAN SINDEL/FLASH90)

Various theories were posited as to why the former Supreme Court president took this on, with some saying that Barak was a longtime ally of Netanyahu, as if he was doing an old friend a favor.

Barak himself said that he thought a plea bargain whereby Netanyahu would admit to lesser crimes in exchange for a hiatus from public life for a certain time was necessary to “put an end to the rift in the nation.”

In light of the recent startling developments in Netanyahu’s court case that an incriminatory meeting between Netanyahu and key state witness Shlomo Filber did not happen when the prosecution said it happened, and – if the defense is believed – might not have happened at all, Barak’s appeal to Mandelblit could be seen not as trying to do a favor for Netanyahu, but rather for the prosecution.

What kind of favor?  Preventing the state from possibly losing this case, if not entirely then at least regarding the most serious accusation against Netanyahu – bribery. Such a defeat would be a crushing blow to key judicial institutions – the Attorney-General, the State Attorney’s Office, the police. It would destroy public faith in those institutions.

On Tuesday the Jerusalem District Court rejected the state’s request to amend the original indictment to reflect that the prosecution does not know exactly when the alleged meeting took place whereby Netanyahu allegedly indicated to Filber that he expected favorable treatment for then Bezeq owner Shaul Elovitch.

Much has been written and discussed regarding how much weight the judges will give to a mistaken date of a meeting: whether they will believe that such a meeting did take place, just at a different time, or whether this constitutes a knock-out punch.

Shlomo Filber, former director general of the Communications Ministry and Israeli businessman, Shaul Elovitch seen during a court hearing in the trial against former Israeli prime minister Benjamin Netanyahu, at the District Court in Jerusalem on March 29, 2022. (credit: OREN BEN HAKOON/POOL)Shlomo Filber, former director general of the Communications Ministry and Israeli businessman, Shaul Elovitch seen during a court hearing in the trial against former Israeli prime minister Benjamin Netanyahu, at the District Court in Jerusalem on March 29, 2022. (credit: OREN BEN HAKOON/POOL)

Depending on whether one loathes Netanyahu or loves him, one can find a legal expert to explain either that this is just one detail of a larger puzzle the judges will see come together and will clearly show bribery, or that this is a significant setback from which the prosecution will not be able to recover.

But for the laymen watching this trial from the sidelines, that such a critical piece of information was fumbled in such a significant case screams out that something is wrong.

Had the state erred on the date of a critical meeting in the course of a regular criminal trial,  it would have been very regrettable.  But in a case like this? In arguably the most important trial in this country in 60 years, where so much is on the line? To fumble on a case like this is downright inexcusable.

Despite the oft-heard mantra that bringing Netanyahu to trial shows that Israel’s legal system is blind and that he is a citizen on trial just like any other, he is not. He is a former prime minister who is currently not the prime minister because of the charges of bribery, fraud and breach of trust brought against him. And then the prosecution gets a key detail in one of the indictments wrong?

What this shows is a startling recklessness and carelessness on the part of the prosecution. True, people make mistakes. But they must not be made when dealing with a case with implications that can drive an elected prime minister out of office. In a case like this, all the t’s need to be crossed, and all the i’s need to definitely be dotted. Too much is at stake to have it any other way.

The wrong date of the alleged incriminating Netanyahu-Filber meetings is not the only example of the police and prosecution coloring outside the lines in dealing with Netanyahu’s cases. The investigation and trial of Netanyahu have been rife with errors that should not be made in any case, let alone one as significant as this.

For instance, Filber testified that he was granted an offer to turn state’s witness and testify against Netanyahu three months before the attorney-general – as he is legally bound to do – approved the investigation of the prime minister.

Nir Hefetz, the previous state’s witness called to the stand, testified to the questionable lengths the police were willing to go to extract information from witnesses or get them to become witnesses for the prosecution.

Hefetz told harrowing tales of physical and emotional abuse at the hands of his interrogators. And even before the trial began, the case was polluted by a flood of leaks from the investigations that seemed designed to keep the Netanyahu cases very much in the public eye and create public pressure for an indictment.

These are no mere technicalities, but rather serious flaws in the way the case was handled.

The attorney-general who ultimately approved the investigation and signed off on the indictments against Netanyahu, the state-attorney who built the case against him, the police who investigated, all needed to approach a case with such far-reaching political ramifications with an extra dose of fear and trembling. It does not seem like they did, and that has very long-term ramifications for the country, ramifications that could have been avoided had Barak’s interventions with Mandelblit about a plea bargain in January borne fruit.