Gantz is being accused of destroying the rule of law - or is he saving it?

Gantz's actions over the last year, including the deal currently being discussed, have helped guarantee that Netanyahu will face trial.

By YONAH JEREMY BOB
BENNY GANTZ, head of the Blue and White party. (photo credit: REUTERS)
BENNY GANTZ, head of the Blue and White party.
(photo credit: REUTERS)
The politics and ethics of Benny Gantz's decision to break apart the Blue and White Party to join hands with Prime Minister Benjamin Netanyahu will probably be debated for decades to come.
His actions may also undermine the rule of law if they lead to Netanyahu getting out of his trial without having to defend himself in court against public corruption allegations.
Gantz's actions over the last year, including the deal currently being discussed, have helped guarantee that Netanyahu will face trial. This is despite a significant contingent of the general public that is willing to give the prime minister a pass, and a legal establishment that has slowly but surely started to cower under Netanyahu’s public popularity.
From a legal perspective, those slamming Gantz say his worst crime is breaking his promise that he would never sit with Netanyahu. The act of sitting with him, legal thought leaders say, undermines the rule of law by legitimizing the prime minister's decision to continue serving despite being under indictment.
Next, they say that once Gantz enters the coalition he will enable Netanyahu to achieve immunity or otherwise avoid his trial and justice.
And a potential change to the law Gantz may agree to could undermine the High Court of Justice's authority to fire Netanyahu, considering that he has already been indicted.
We do not know what the final deal will be and how Netanyahu might try to maneuver it down the line.
But the way the final deal is sounding, Gantz did not give Netanyahu anything that the prime minister had not achieved by electoral victories or popularity.
Gantz also likely created a certainty that Netanyahu will need to stand trial in court even after the coronavirus crisis created an opportunity for the prime minister to avoid this.
CRITICS ON the legal plane seem to have gotten the "counterfactual" aspect wrong.
In political science, the counterfactual is asking what was most likely to happen if history had gone down the most likely different path than what a leader or country decided.
If Gantz had not cut a deal, right or wrong politically and ethically, it appears that legally-speaking, there would have been fourth elections; that Netanyahu's trial would have been delayed even more than the current two months postponement; and that he would have had a real likelihood of passing a new retroactive immunity law to indefinitely push off the trial.
This is because Netanyahu did better in the third election than in the second, and any actions Gantz tried to take against him in a block of Yisrael Beytenu leader Avigdor Liberman, the Left and the Joint List would have fallen short of forming a government (at best he had 59 votes.) Polls also indicate that Gantz’s moves with a minority bloc would likely have shifted enough votes from Blue and White to Likud in a nearly inevitable fourth election to give the Right bloc a 61-MK majority without having to cut any deal.
Any law that a Gantz 61-vote bloc would have passed – if there had been one – banning Netanyahu from forming a new government following fourth elections, could be easily overturned by a new Netanyahu 61-MK majority. If there would have been a 61-MK majority to form a minority coalition, it would have happened around 10 days ago, but there was none.
Netanyahu's acting Justice Minister Amir Ohana already used the coronavirus crisis to delay his trial from March to May 24.
The delay could not have happened without the judicial establishment agreeing to it and buckling under pressure. But buckle it did, granting a 67-day extension – and only four days after rejecting Netanyahu’s request for a shorter postponement of only 45 days.
THIS IS NOT the first time the judicial establishment has buckled.
The Jerusalem Post reported in June 2018 that Attorney-General Avichai Mandelblit was taking his time to make the decision to indict Netanyahu – the pre-indictment decision waited until February 28, 2019, the final decision until November 21 and even the original trial date got postponed until March – because he was sure that it would force him to resign, and did not want to cause that without being close to 100% sure.
But Mandelblit was wrong. Netanyahu did not resign and instead won a plurality of the public vote in a best two-out-of-three elections, with his second-round razor-thin loss being too close to allow Blue and White to form a government.
Despite having a clear judicial precedent that could have allowed it to compel Netanyahu to resign once he was indicted on November 21, the High Court of Justice has avoided several opportunities to do so, using all sorts of technical excuses.
In one decision, the High Court finally exposed its real reason for hesitating: It cited the sensitive electoral tension in the air and a potential backlash from the general public.
So the new proposed law that Gantz may agree to is really only describing the current situation where the High Court has passively agreed to let Netanyahu continue to serve as prime minister under indictment, leaving only the point of his being forced out as if and when he is convicted (incidentally this is what the Knesset law on the issue already says.)
The general public also could have voted no confidence in a prime minister under indictment but has done the opposite, elevating the Likud's power since the electoral cycle started in December 2018. So neither the public nor the court were going to guarantee a Netanyahu trial.
By replacing Ohana and reportedly ensuring a deal where Netanyahu cannot make any moves to further delay his trial, Gantz is likely ending postponements of the trial that the judicial establishment has been granting. In any normal universe, the trial would have started in December 2019 or this past January.
The court had scheduled the March trial date to clearly avoid starting the trial during election season. Does anyone really think that the court would have started the trial during a fourth election season, which was virtually guaranteed without a deal?
Now the courts will likely be bound by both the Netanyahu-Gantz coalition and the new justice minister – who is expected to be more court-friendly - to maintain the May 24 trial date.
Even if the coronavirus is still bad then, a new justice minister committed to the rule of law can give the courts the political backing they need to stick to the trial date, something they would have lacked under Ohana.
There is nothing clean about Gantz's actions on the legal plane.
But in the realm of the practical and the doable, his decision may be looked back upon eventually as the key act ensuring that Netanyahu's trial went forward, despite the public and the court's hesitations.