Might Olmert save an embattled Netanyahu from an indictment?

Top court set high standard for relevant evidence in ex-PM’s case.

Former PM Ehud Olmert  (photo credit: AMIT SHABAY/POOL)
Former PM Ehud Olmert
(photo credit: AMIT SHABAY/POOL)
It is getting harder and harder for Prime Minister Benjamin Netanyahu to say that “there will be nothing because there is nothing” when it comes to his legal issues.
He has already been questioned under caution three times and will reportedly be questioned a fourth time in the Case 1000 (allegedly illegal gifts) and Case 2000 (alleged media bribery) affairs.
The stakes could not be higher, with expectations that an indictment would mean resigning the premiership.
And yet, as things heat up for Netanyahu, his saving grace may come from the unexpected corner of – none other – than former prime minister and current prisoner, Ehud Olmert.
How are the two prime ministers connected? Before we answer, we need to better understand the nature of the issues Netanyahu is confronting.
If the media leaks are true, the two cases come down to whether the prosecution can prove Netanyahu had criminal intent, based on various items of circumstantial evidence.
How does the prosecution come up with such proof? It appears that there is no clear evidence of the quid pro quo needed for bribery charges, in which Netanyahu received expensive gifts or favorable media coverage, in exchange for using his direct powers to help in some financial way those who gave him those favors.
But can the prosecution go after him for breach of public trust? Here, the standard is supposed to be lower. If a public servant receives gifts or some kind of benefit from someone over whom he has direct power – a conflict of interest – they can violate breach of trust. If they actively conceal benefits they receive from authorities when they have a duty to report those benefits, they can also be accused of violating that law.
Netanyahu has claimed that he did not ask for and gave nothing for the expensive gifts he received; that he either was playing games with Yediot Aharonot publisher Arnon “Noni” Mozes to tape him and use the tape as a defense against extortion, or that he was told by his lawyers to tape Mozes.
He has also said he did not know about certain gifts given to Sara Netanyahu or the high value of the gifts he was given.
The latest reports indicate Netanyahu asked Israeli businessman Arnon Milchan to give Sara an item of jewelry worth NIS 10,000, which she had asked Milchan for and about which he had expressed unease.
That would seem to disprove parts of his narrative and indicate he was actively seeking the gifts – possibly using his political power to press for them.
There have also been some reports about Netanyahu possibly helping Channel 10, in which Milchan is an investor.
Further, the prosecution just this week indicted Ashkelon Mayor Itamar Shimoni for helping a real estate businessman get municipal approvals in exchange for toning down negative media coverage against him. Some are saying this is no different than Netanyahu’s talks with Mozes.
But the hard, cold truth for those who have been hoping to get rid of Netanyahu via one of the investigations, is that in December 2015, the Supreme Court set such a high standard for using circumstantial evidence to prove intent for the charges of breach of trust and bribery, that an indictment is still a long shot.
The big headline at the time was that Olmert would be sent to jail for at least 18 months.
Few looked at the court’s reasoning as to why it clipped four-and-a-half years off his six year sentence in the lower trial court.
The Supreme Court only convicted Olmert of accepting NIS 60,000 in bribes, out of a conviction for NIS 560,000, and an original accusation of NIS 1,500,000.
Four of the five justices tore apart the conclusions by Tel Aviv District Court Judge David Rozen.
Rozen said the state’s main witness Shmuel Duchner, who died mid-trial, was not trustworthy all the time, but could be relied on where there was supporting evidence and noted that he had been extensively cross-examined before dying, even if not on every issue.
The justices essentially tossed out Duchner’s testimony in its entirety.
Justice Neal Hendel explained a variety of scenarios which could contradict Duchner’s testimony against Olmert – some seemingly logical, but other somewhat wild – as to how to explain that Olmert could be innocent, even if Olmert’s alibi was a factual mess.
Hendel and the other justices also seemed unimpressed with the carefully built external evidence of the prosecution showing that Olmert would try to help his younger brother Yossi and that Duchner would only give a bribe if he got credit from Olmert.
For example, there was a mountain of evidence of Olmert honoring Duchner at various events in ways which seemed hard to explain without a concrete reason – such as Duchner’s story of paying bribes to Yossi at Olmert’s request.
The evidence against Olmert which the Supreme Court tossed was much more damning than that which has been produced against Netanyahu.
Attorney-General Avichai Mandelblit has made it clear he will only indict Netanyahu if the case is super airtight.
The Shimoni indictment does not really drag Netanyahu down, since even if it proves bribery and breach of trust can happen with media benefits, the benefits that Shimoni gave to the businessmen were much more concrete and provable than what the police appear to have on Netanyahu.
Many would laugh at the idea that Netanyahu has helped Channel 10, with which he is constantly at war, and it appears that Milchan is mostly an uninvolved investor in the station.
Taking all of this into account, it is hard to see Mandelblit rolling the dice on a case weaker than the one the prosecution ultimately lost regarding Olmert.
Ironically, this would effectively make Olmert Netanyahu’s savior.