Three major questions hover over the public corruption trial of Prime Minister Benjamin Netanyahu, a trial that could reshape the country.
- Do the judges think he is innocent or guilty?
- Have the dynamics of negotiations over a potential plea deal changed since Netanyahu and the prosecution almost reached a deal last January?
- Big-picture, where is the case today compared to three years ago – when it started – and what is the best outcome?
Regarding the first question, the comments of the judges were leaked to the media, seeming to pressure the prosecution into dropping key charges against Netanyahu and moving toward a plea deal he would find more favorable.
The judges could have leaked it, but that would be unprecedented. If the prosecution is not supposed to leak such things, judges could lose their positions for such leaks.
There is no likely reason that the prosecution would do it because that undermines their image as well as their case; they would do everything they can to keep such an embarrassing revelation under wraps.
The defense has strenuously denied – twice in just a few days – that it leaked the comments, though clearly it would have had every incentive to do so when they obviously harm the prosecution.
The thin argument that the defense offered to deny the leak is that the comments of the judges did not damage the prosecution enough.
It was not good enough that the judges allegedly told the prosecution that there were legal difficulties with bribery charges in Case 4000 – the “Bezeq-Walla Affair” – and that the prosecution should cut a plea deal because the judges also said this should happen “for the good of the country.”
The defense said it does not like this version of events because it makes it sound like Netanyahu might be guilty in the eyes of the judges but that the prosecution should fold anyway, to end a half-decade-long struggle over yes/no Bibi.
Still, there is no question that the leak helped the defense, as it brought an avalanche of calls, including from the opposition, for the prosecution to cut a plea deal, even if it is one it doesn’t like.
This goes against everything the prosecution believes in. They believe that the Netanyahu trial must end either with a verdict or with a plea bargain that removes him from politics – because they believe that anything less would mean the end of the equality-before-the-law principle. Their position is that this would open the floodgates of corruption in a whole new way.
After all that, assuming the comments as leaked were correct, this would mean that if they handed down a verdict today, they would probably acquit Netanyahu of the jail-carrying bribery charge, but would likely still convict him of breach of public trust in one or both of Case 4000 and Case 1000, the “Illegal Gifts Affair.”
And this is a split result. Netanyahu would not be exonerated and his “there is no such thing and it never happened” mantra would be punctured, but he might get a community service sentence and – more importantly – might very well get to stay in power.
Circling back to the plea deal potential, former attorney-general Avichai Mandelblit previously told The Jerusalem Post that he might have cut a deal last January, including for the minor convictions, but that would have let Netanyahu stay in politics – if the prosecution team had not been so opposed.
Sources within the defense have made it clear to the Post that they would have pushed hard at the time for Netanyahu to accept such a deal.
Alternatively, even if Mandelblit held the line then with the prosecution team of requiring Netanyahu to quit politics in exchange for a deal, he later believed a deal leaving the prime minister in politics – as long as there were at least some minor convictions – would have been “for the good of the country.” This is pretty similar to what former justice minister and National Unity Party MK Gideon Sa’ar said over the weekend.
What Sa’ar meant was that, as important as the principle is that no public official is above the law, resolving the government’s campaign to overhaul the judiciary without extreme changes is more important.
So why does it seem that the prosecution still won’t budge?
We need to go back in time and recall that for all of Netanyahu’s attacks on Mandelblit, the former attorney-general was a former cabinet secretary of his and was seen within the prosecution as being too soft.
The majority of the prosecution team, including former state attorney Shai Nitzan, wanted to indict Netanyahu for bribery in all three cases, not just in Case 4000.
From their perspective, Mandelblit committed an original sin when he downgraded Cases 1000 and 2000 to minor charges. There were even prosecutors who wanted to indict Sara Netanyahu but were overruled by Mandelblit.
So the prosecution team is unlikely to budge now unless Netanyahu makes some kind of goodwill gesture of taking responsibility for portions of what he is accused of and stops attacking the prosecution and the Attorney-General’s Office. Anything less than that, they believe, could take away their independence, even if the judiciary is not formally overhauled.
At the very least, they want to cross-examine Netanyahu, believing he knows this would be dangerous for him and so would be more willing to cut a plea deal which the prosecution could tolerate.
But the prosecution has issues that are not limited to the judges’ comments or to Netanyahu being reelected by the public despite all the evidence against him: The case itself has not gone as planned.
The case itself has not gone as planned
Shlomo Filber and Nir Hefetz, top Case 4000 witnesses and former aides to Netanyahu, did provide significant evidence of his potential actions toward a media bribery scheme, but Filber, in particular, undermined key aspects of the case. And while a majority of communications ministry officials backed the prosecution’s case, multiple officials took Netanyahu’s side.
Criminal law cases are not won by 51% or even 60% of the evidence, but by more like 90%. So, regardless of whether the prosecution is right or wrong about Netanyahu, if it has not proven its case to a 90% certainty in court, it loses.
Regardless of whether the prosecution is right or not about Netanyahu if they have not proven their case to a 90% certainty in court, they lose.
Case 2000, the “Yediot Aharonot-Israel Hayom Affair,” has been seen as weak from the start. Mandelblit barely filed the indictment, and only under pressure from the prosecution. Winning an attempted media bribery case – meaning the bribery never happened – is even harder than winning a media bribery case – with there having been only one such prior case in Israeli legal history.
Case 1000 is probably the strongest against Netanyahu, due to the ongoing testimony by Arnon Milchan and previous testimony by his aide, Hadas Kline.
This is so even though there are holes in this case as well – since, part of the time, Milchan seems to have given Netanyahu gifts, not for anything concrete, but mostly just to get to be around a prime minister.
So let’s say the prosecution wins a conviction in Case 1000 – that alone probably would not lead to jail time or end Netanyahu’s political career.
In that case, the prosecution’s chance of getting a better verdict than what it can get in a plea deal is low. It is quite possible that if Netanyahu attacked the prosecution less, such a deal would now be more likely.
Yet, after all of the attacks, a plea deal before the eve of Netanyahu’s cross-examination is unlikely – whether it would be “for the good of the country” or not.