How did Trump and Netanyahu end up in such different legal postures?

Many of Trump’s top aides were involved in illegalities, including: former chief campaign manager Paul Manafort, former Trump national security advisor Michael Flynn, but none turned on him.

Donald Trump and Benjamin Netanyahu. (photo credit: AMMAR AWAD/REUTERS)
Donald Trump and Benjamin Netanyahu.
(photo credit: AMMAR AWAD/REUTERS)
Prime Minister Benjamin Netanyahu may still have his seat, but he is closing in on a year into his pretrial process and confronting the calling of witnesses probably no later than April.
Former president Donald Trump is out of office, but he has defeated impeachment twice and, while there are many criminal probes against him, he is not expected to land on the witness stand any time remotely as soon as Netanyahu.
Putting aside innocence or guilt, why did Netanyahu’s legal proceedings advance so much deeper and sooner than those against Trump?
Both Netanyahu and Trump faced former top aides turning against them by summer 2018 (Nir Hefetz and Shlomo Filber against Netanyahu and Michael Cohen against Trump).
When Cohen turned on Trump, many who closely followed proceedings against former US president Richard Nixon thought it was Trump’s “John Dean moment” or “Deep Throat moment” – the moment when a top aide or source finally delivered the goods to sink the ship.
Further, by spring 2019, major reports were issued regarding each of them by US special prosecutor Robert Mueller against Trump and by Attorney-General Avichai Mandelblit regarding Netanyahu.
But those who thought Trump would sink first did not understand the critical difference in the law for heads of state of the two countries.
The US presidency is conceptually built on the idea of kingship, with some reduced powers.
In that light, the president has several independent powers – including, significantly, the power to pardon – that the Israeli prime minister does not have.
In contrast, in Israel, it is the president, who otherwise serves mostly as a figurehead, who has the exceptional authority to issue pardons.
According to most US legal scholars, this means that a sitting president cannot be indicted while in office. This is based on the concept that you cannot prosecute the official who holds the power to pardon.
Though there is a minority group of legal scholars who debate this, it likely means that a sitting president must first be impeached before he can be indicted.
Both houses of Congress, including Republicans, are needed to complete the impeachment and removal process, including a two-thirds vote in the US Senate, and the grounds are “treason, bribery or other high crimes and misdemeanors.”
Mueller took the position that Trump could not be indicted as a sitting president, even as he essentially said Trump had obstructed justice.
There was never a chance that Republicans would help Democrats impeach Trump based on the Russia charges. This was made only that much clearer when two later attempts to impeach Trump – for the “Ukraine call” and “January 6 Capitol riot” sagas – also fell far short.
Another difference was that the top aides who turned against Netanyahu were much more damaging to him than Cohen or others were to Trump.
In fact, Cohen’s testimony basically only hurt Trump in the campaign financing sideshow case in New York and drew no blood in the primary Russia probe.
Missing from the Mueller probe was even a single witness to point the finger at president Trump as the head of a Russia conspiracy the way that Hefetz and Filber did to Netanyahu in the Bezeq-Walla Affair, known as Case 4000.
Rather, the Mueller probe for Trump is more analogous to the Submarine Affair for Netanyahu, in which the prime minister never became a suspect.
Many of Trump’s top aides were involved in illegalities, including former chief campaign manager Paul Manafort, former national security advisor Michael Flynn and top unofficial adviser Roger Stone. But none turned on him.
This would be akin to many of Netanyahu’s top former aides allegedly involved in the Submarine Affair, including lawyer-confidante David Shimron, former chief of staff David Sharan, former national security council chief designate Avriel Bar-Yosef, in which none turned on the prime minister.
Finally, Trump had the undisputed authority to fire multiple attorneys-general and even their deputies, which had various impacts on the probes against him.
In Israel, Mandelblit has a set six-year term. Firing him would not be impossible, but it would be much harder to swallow politically and might even be blocked by the High Court of Justice.
One similarity between the Trump and Netanyahu probes is that Mueller, like Mandelblit, resolved many open issues in favor of Trump.
Besides leaving Netanyahu out of the Submarine Affair, Mandelblit viewed the Yediot Aharonot-Israel Hayom Affair, or Case 2000, as lacking proof sufficient beyond a reasonable doubt about whether Netanyahu had a criminal media-bribery mental state, though there was substantial evidence of possible criminality. He indicted Netanyahu merely for fraud and breach of trust.
Likewise, Mueller notes concrete coordination by Trump allies Stone (though his name is redacted) and Jerome Corsi in dumping Clinton’s emails with Wikileaks (recognized by most as coordinating with Russia). But he states an inability to prove a criminal mental state beyond a reasonable doubt.
None of this means that Trump is off scot-free.
Now that he is no longer president, he may face charges in the New York campaign finance case and may face new criminal or civil charges relating to the January 6 Capitol riot.
There are even multiple new probes against Trump for allegedly pressuring Georgia officials to improperly overturn the election results to be in his favor.
But by the time Trump faces witnesses in court, if any, Netanyahu will likely be deep into his trial or maybe even past the verdict stage.