Could Netanyahu’s push to amend indictment bust up the trial? – analysis
Generally, criminal law allows prosecutors to attribute to an individual only actions that the individual performed himself.
By YONAH JEREMY BOBPRIME 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)
There is a lot of confusion surrounding Prime Minister Benjamin Netanyahu’s success in getting his trial postponed from January to February through requests to force the prosecution to amend its indictment and to dispute evidentiary issues.Some might even misunderstand to think that the trial is about to fall apart.They would be wrong.Netanyahu may very well prevail with his top-notch defense team and a series of state’s witnesses who were his former aides and who may not hold up under cross-examination.But any wins he is notching at this stage are temporary procedural ones at best.Take the motion to compel the prosecution to amend its indictment.Essentially, the motion comes down to an objection that the prosecution lumped the prime minister in with actions undertaken by his wife, Sara, and his son Yair.Generally, criminal law allows prosecutors to attribute to an individual only actions that the individual performed himself.But there is an exception. If a group of people act in concert, especially if one of them is giving directives to the others, then prosecutors can connect the activities of one part of the group to the others.This is the argument of the prosecution.Whether in Case 1000, with many of the allegedly illegal gifts that various members of the Netanyahu family received, or in Case 4000, where various members of the family allegedly pressured Walla as part of a media bribery scheme, the prosecution says it can sometimes treat the family as a unit.This does not mean that all allegations are lumped on the Netanyahu family wholesale-style.Many of the allegations are laid squarely at the prime minister’s feet.Also, it is possible that a limited number of examples to prove the overall allegations may be successfully tossed out by the defense through this amended indictment exercise. But most of the allegations will remain.It is also possible that even those parts of the indictment that may be struck or amended may not happen now, but at a later stage.In theory, usually only the prosecution seeks to amend its own indictment, and the defense files motions to dismiss at a later stage by attacking the prosecution’s legal theories.The current defense motion to amend is an unorthodox tactic for trying to make broader legal arguments at an earlier stage, likely to achieve some delay.But the fact that there is a delay has more to do with letting procedure run its course so that the court can avoid later claims of bias.It also has to do with the evidentiary disputes, which have shrunk in volume continually, and it seems will cause only a few weeks of delay.Originally, Netanyahu’s defense team wanted the trial delayed until the end of 2021 or at least until late spring 2021.A delay from January to February is not nearly as dramatic, and seems to signal the Jerusalem District Court’s determination to press forward with witnesses in the near future.The real battle with witnesses, cross-examination and high drama is not far off.
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