Why Hefetz flop matters - analysis

In order to convict Netanyahu, the state prosecution needs to prove that he had a criminal mental state to perpetrate media bribery and need to get the ex-PM himself on the witness stand.

Former Netanyahu media adviser Nir Hefetz (photo credit: AMIR COHEN/REUTERS)
Former Netanyahu media adviser Nir Hefetz
(photo credit: AMIR COHEN/REUTERS)

For most of day two of the testimony of Nir Hefetz, all was going according to plan.

Until it suddenly wasn’t.

For most of the five-and-a-half hours that Hefetz testified on Tuesday and nearly all of the six-and-a-half hours he testified on Monday, he contributed invaluably to the prosecution’s case against Benjamin Netanyahu. But in one crucial minute on Tuesday, he may have torn everything down.

How can this be?

First, courts do not care about how many “pushes” and great headlines a witness makes for media outlets. They are razor-focused on evidence that could lead to a conviction.

Hefetz’s extensive testimony about potential misdeeds and obstruction of evidence by Sara and Yair Netanyahu – erasing their text messages with other key members of the alleged Case 4000 media bribery scheme – made great headlines.

Opposition leader Benjamin Netanyahu at the Jerusalem District Court on November 22, 2021 (credit: YONAH JEREMY BOB)Opposition leader Benjamin Netanyahu at the Jerusalem District Court on November 22, 2021 (credit: YONAH JEREMY BOB)

Yet it was utterly irrelevant to the judges.

In order to convict Netanyahu, the state prosecution needs to prove that he had a criminal mental state and intention to perpetrate a media bribery.

But the prosecution cannot prove Benjamin Netanyahu had such a criminal mental state based on actions by his family if he was not in the room, and no one will testify he knew what they were doing.

What Hefetz has done well so far for the prosecution is connecting some of the dots between the two sides of the alleged bribery scheme.

That made Hefetz a powerful witness.

Many other key witnesses matter, but they only help prove the case against Netanyahu from one side or the other. And that is what made Hefetz’s going off the prosecution’s script so damaging.

He told the judges that when Netanyahu first heard that his actions with Bezeq and Walla equaled a new crime called media bribery, the former prime minister was convinced it was a joke or a misguided political crusade against him, but nothing criminal.

Hefetz even made a point of turning to the judges and emphasizing that as someone who knew Netanyahu as well as anyone, he was convinced that this was his authentic belief.

Media bribery is still a relatively new idea – this is only the second criminal case in Israel to explore the concept, and the first case had not started when Netanyahu was allegedly conducting key initiatives from 2013-2016.

If Netanyahu really did not know that it was even possible for his actions to be criminal, it could be difficult to convict him.

Immediately perceiving this threat, State Prosecutor Amir Tabenkin jumped in and suggested that the court disregard Hefetz’s estimation of Netanyahu’s mental state on this issue as baseless speculation.

That is kind of an awkward thing to say when you want the court to buy what the witness is selling to take down a former prime minister.

Outside the courtroom, sources said that this had all been anticipated, as Hefetz had said something similar to police. And yet the prosecution has worked hard at cleaning up many of the awkward statements and inconsistencies from Hefetz’s evolving statements to police.

Did no one think to advise him to keep this one opinion to himself, or at least to make the defense work hard to get it out of him on cross-examination?

This does not mean the case is over. But if until now the strategy could strongly rest on a one-two punch of Hefetz and former communications director-general Shlomo Filber along with some other guest stars, there is now a hole in the Hefetz part of the case.

The prosecution still has two possible though much weaker ways to win.

One is to convince the judges that though no one witness connects all the dots about Netanyahu’s mental state being criminal for the scheme, it has enough separate witnesses on each side to prove the case – despite Hefetz’s unhelpful view on this one point.

However, this is a very messy argument that some judges might not stomach.

The alternative sounds impossible, but might be the better shot: catch Netanyahu (along with co-defendant Bezeq-Walla owner Shaul Elovitch) exposing his own criminal intent.

Being that Netanyahu is brilliant and known for being incredible at staying on message, this would seem to be a fantasy.

Former prime minister Ehud Olmert was similarly confident going into his cross-examination in his trials. He found that being questioned by lawyers in court with criminal charges hanging over his head was much more difficult than deciding what questions you want to avoid answering when a news conference gets unpleasant.

Indeed, many said Olmert’s overconfidence led him to say too much, and dragged him into making passive admissions that he did not even realize.

As far-fetched as it sounds, the same could happen to Netanyahu.

But this was not Plan A for the prosecution.

The question now will be whether they can exploit a Plan B.