Is indictment against Sara Netanyahu unconstitutional?

Mrs. Netanyahu and her staff knew exactly what they were doing and what was binding – which also nixes the idea that the failure to publish the parameters could be a defense.

Sara Netanyahu (photo credit: AVI OHAYON - GPO)
Sara Netanyahu
(photo credit: AVI OHAYON - GPO)
We have seen the Sara Netanyahu legal team throw everything but the kitchen sink to try to undermine the indictment against her.
Some of their arguments are to reduce, not eliminate, the amount of the alleged fraud, and some are more for public relations than they for helping her in court.
But the lawyers have put forth a serious argument about whether the charges themselves are constitutional, bolstered by the fact that it is made by highly respected Bar-Ilan University Law Prof. Ariel Bendor.
According to a legal opinion submitted by Bendor, a committee of three officials in the Prime Minister’s Office was the authority that set the financial limits for meals, which Netanyahu is accused of violating.
Bendor writes that Section 36 of the Basic Law on Government empowers only the Knesset Finance Committee to set expenditure parameters for ministers, including the prime minister.
He states that the committee set parameters in 1981, and that the PMO committee’s parameters unconstitutionally went beyond those set by the Knesset.
Importantly, Bendor is not merely saying the PMO committee’s parameters were not binding, but that they were a power grab by the executive branch of powers granted to the country’s legislative branch.
Further, he says the PMO committee could have exercised this kind of power if it had asked for authorization from the Knesset Finance Committee. However, it did not ask.
Finally, he says that any new expenditure parameters of this category must be published in order to be binding, let alone to be able to indict someone for violating them.
While these arguments seem to have strong coherence, Attorney-General Avichai Mandelblit, without having publicly explained his view on the issue, views them as lacking any real substance.
It appears the main counter-arguments to Bendor’s legal analysis relate to Mrs. Netanyahu’s alleged active fraudulent actions and the overarching principles of reasonability and proportionality binding all areas of public activity and spending.
According to the indictment, Mrs. Netanyahu was not a passive actor who looked the other way when her staff broke through expenditure limits.
Rather, she took an active role in covering-up the fraud.
The indictment states that Mrs. Netanyahu told her staff to list her official cook as cleaning staff so as not to raise obviously red flags about extensive ordering out. That was only supposed to be allowed during periods when the cook was not on duty.
Moreover, the indictment states that she had her staff and catering staff who came to the residence doctor a range of invoices and documents so as not to raise suspicion.
It is much harder to argue that Mrs. Netanyahu did not commit fraud, because of a technicality of who made a rule, when it appears that she herself viewed the rule as sufficiently binding that she orchestrated a fraud with many staffers to get around the rule.
In addition, up until the state comptroller alleged that Mrs. Netanyahu might have committed criminal conduct, neither she nor anyone else complained about the PMO committee setting limits, and one of her staffers who helped doctor documents was part of the committee.
It would appear the prosecution believes that based on this, Mrs. Netanyahu and her staff knew exactly what they were doing and what was binding – which also nixes the idea that the failure to publish the parameters could be a defense.
Finally, when the state comptroller analyzed this defense raised by Mrs. Netanyahu, he brushed it off as contradicting the fundamental duty that anyone benefiting from public funding had to treat public expenditures as a sacred trust.
This means that even though she was not a public official, as soon as she used public funds, she assumed the same duties of reasonability and proportionality that would fall on anyone else using such funds.
Avigdor Liberman made a similar argument to achieve his acquittal from fraud charges in 2013, when the case hinged on some borderline issues of intent, and the court just did not think the case was quite airtight enough.
These constitutional arguments by no means get Sara Netanyahu off easily, but if she does win her case, they will likely be part of the mix that gets her through.