Netanyahu’s lawyers: Police probed PM before A-G approved

Demand Case 2000 be nixed

SEPTEMBER 13, 2020 18:30

PRIME MINISTER Benjamin Netanyahu with members of his legal team at the beginning of his corruption trial at the Jerusalem District Court in May. (photo credit: RONEN ZVULUN/REUTERS) — PRIME MINISTER Benjamin Netanyahu with members of his legal team at the beginning of his corruption trial at the Jerusalem District Court in May.

(photo credit: RONEN ZVULUN/REUTERS)

The police probed Prime Minister Benjamin Netanyahu in Case 2000 before they were given legal authorization to do so by Attorney-General Avichai Mandelblit, the prime minister’s lawyers claimed to the Jerusalem District Court on Sunday.

Although technically the motion by Netanyahu’s lawyers was their final chance to get the court to force the prosecution to cough up documents that it has refused to turn over, the lawyers revealed some new lines of attack in the process – which if true, could disqualify large portions of the case.

In Case 2000, Netanyahu is accused of involvement in an attempted media bribery scheme in which he allegedly took several actions as prime minister to reduce the competitiveness of the Yisrael Hayom newspaper for the benefit of its competitor Yediot Aharonot, in return for a promise by Yediot owner Arnon “Noni” Mozes to systematically shift coverage of him from being negative to positive.

According to Netanyahu’s more than 200-page motion on Sunday, the police started to probe Netanyahu in relation to the case in March 2016, even though an official written approval from Mandelblit came only on July 10, 2016.

The reason this could be important is that Israeli law specifically restrains the police from probing the prime minister unless authorized to do so by the attorney-general.

In some circumstances, if the police gather evidence without legal authority, the evidence – and sometimes the entire case – could be disqualified.

At press time, the Justice Ministry had not responded and was expected to take time to review the full motion by Netanyahu's lawyers.

A win for Netanyahu on this line of attack is not necessarily guaranteed, however.

The Hebrew used in the relevant law is somewhat vague and could refer to different stages of a probe, meaning that certain initial stages could be allowed without the attorney-general’s approval.

Also, Mandelblit might have given an earlier verbal approval that was not recorded – though if so, the prosecution may need to provide additional information to the defense on this issue.

Finally, even if the police did overreach, Israeli law lets judges have the option of disqualifying evidence, but also gives them the discretion to reprimand the police, while allowing the evidence to remain admissible at trial. This is presuming they believe the evidence is true and the police merely made a technical error.

Another issue flagged by Netanyahu’s lawyers was that neither the prosecution nor the police have produced a document where Mandelblit authorized the police to conduct surveillance of and probe the prime minister’s son, Yair Netanyahu.

Yair was a suspect in Case 4000, the Bezeq-Walla Affair, though in the end he was not indicted.

Yet Netanyahu’s lawyers recount a Channel 12 story from January 2019 in which a representative of Mandelblit’s said that investigative activities relating to Yair helped break open Case 1000, the Illegal Gifts Affair.

Here, the question is more nuanced because it is not clear that the attorney-general must approve a probe of the prime minister’s family members.

If the court rules that the attorney-general does need to give such approval, then the prosecution could be in trouble.

Otherwise, the prosecution may still need to give a fuller account of the authorization process for investigating Yair.

Further, Netanyahu’s lawyers said that the police seizure and inspection of the cellphone of former Netanyahu aide Ari Harow, now a state’s witness, was unauthorized.

They argued that the police only had the right to inspect Harow’s cellphone regarding an unrelated case specific to Harow himself.

Subsequently, when they accidentally found the recordings of Netanyahu talking to Mozes on Harow’s cellphones cellphone, the lawyers said that the police requested a warrant from a court.

However, the lawyers argued that seeking a warrant after-the-fact was improper procedure.

According to the lawyers, the prosecution has not produced any kind of document explaining the process by which the police accessed the Netanyahu-related evidence on Harow’s cellphone.

They demanded the prosecution produce an explanation which the lawyers can then use as a basis to try to block the recordings from being used at trial.

Rules regarding finding additional evidence of criminal wrongdoing unrelated to the original authorization are highly complex, and it is likely that the prosecution will need to provide details about how the Harow cellphone incident developed.

Finally, Netanyahu’s lawyers said that the prosecution had not only failed to produce, but had not even reviewed a critical legal opinion by the Communications Ministry which declared the prime minister’s actions in Case 4000 to be legal.

Withholding exculpatory evidence which could help acquit a defendant is prohibited.

While the prosecution had not responded at press time, it has been previously reported that the apolitical legal adviser for the Communications Ministry signed off on some of the actions for which the prosecution has accused Netanyahu of media bribery.

In the past, the prosecution countered that these apolitical officials had their arms twisted by then Communications Ministry director-general Shlomo Filber,

Filber had been a top aide to Netanyahu, but eventually became a key state’s witness accusing the prime minister of bribery in Case 4000.

Netanyahu’s lawyers were not the only ones who took aim at the prosecution on Sunday.

Lead lawyers for Bezeq and Walla! owner Shaul Elovitch (and his wife Iris),who are accused of offering Netanyahu favorable media coverage in exchange for favorable government policy treatment, claimed that the prosecution has purposely left out a variety of pieces of evidence to cloud the defendants’ ability to locate abuses and errors in the investigation.

For example, they argue that critical aspects of evidence regarding the interrogation of the Elovitch’s grown-up son, Or, were left out of the materials provided to them.

Although “official” interrogations were included, the Elovitch family lawyers maintain that there was unofficial pressure applied to Or outside of the interrogation room and that all of this was problematic and omitted from the official record.

Regarding former Netanyahu aide and state’s witness Nir Hefetz, they say that key aspects of an exchange at the police station between him and a woman (not his wife) with whom he had a romantic connection were improperly omitted.

The lawyers also want to know if there were prosecution officials who opposed using this third party female to “brutally” pressure Hefetz and what they had argued so that this could be presented before the court.

In fact, the lawyers refer to a news report from early 2018 noting that one police official complained to the Police Investigations Department about the conduct of some of his police colleagues in their treatment of Hefetz.

Moreover, the lawyers demanded information explaining the basis for the prosecution decision not to charge former Walla! CEO Ilan Yeshua.

Yeshua was never a suspect, but was instrumental in the alleged media bribery scheme to improve coverage for Netanyahu as well as in providing evidence to the police regarding the scheme.

The implication was that Yeshua had scored a sort of “soft” state witness deal where by cooperating strongly with the police to help get Netanyahu, they left him off the list of suspects.

In addition, the lawyers demanded documents explaining the basis for holding Filber in prison overnight.

They say this was an unjustified and extreme act used purely to pressure him into confirming false allegations against Netanyahu.