Making sense of law enforcement crises and PM’s trial - analysis

Maybe in another country, Netanyahu would not or should have been indicted. But in Israel that is not the current law of the land.

PRIME MINISTER Benjamin Netanyahu at his trial. (photo credit: REUTERS)
PRIME MINISTER Benjamin Netanyahu at his trial.
(photo credit: REUTERS)
Two “scandals” broke recently regarding the police and the prosecution, with the real upshot being whether there would be any impact on the public corruption trial set to start against Prime Minister Benjamin Netanyahu in January.
The bottom-line is, for better or worse, there will be no impact.
To understand why, we need to dissect the scandals and the connection or lack thereof to the prime minister’s trial.
At the outset, it needs to be stated that one of the scandals poses much more serious questions than the other.
Ironically, the less important “law enforcement gate” is the one where a law enforcement officer actually did something wrong.
Police official Avi Rotenberg has admitted to a relationship with Yediot Aharonot owner Arnon “Noni” Mozes’s wife, Judy, and specifically at a time when he was involved in the case against Sara Netanyahu.
For those who have long forgotten, Sara Netanyahu agreed to a plea bargain and was convicted in the Prepared Foods Affair for a reduced form of fraud.
In short, Rotenberg's violation of conflict of interest principles had to do with being involved in the Sara Netanyahu case at a time when there was conflict between the Mozes family and the Netanyahu family – while he was involved with Judy Mozes.
The violation is clear and there is a basis to demand Rotenberg receive a harsher reprimand.
But Rotenberg had nothing to do with the trial the prime minister faces (he may have been involved in some much earlier separate probes of Netanyahu known as Bibi Tours where no indictment was filed), only Sara Netanyahu’s case.
The stronger question regarding the Netanyahu case comes from the Yacoub Abu Elkian case, where it seems that no one in law enforcement violated any rules.
Curiously, the official who best raised the dilemma was Yamina MK Bezalel Smotrich.
In real time and when there was no strange complex political advantage to gain, Smotrich declared (before the case had been fully probed) Elkian a terrorist for running over Levi.
Yet, last week Smotrich framed the parallel between the Elkian and Netanyahu cases perfectly: the question is when do you drop an indictment due to broader public interests?
The Yamina MK went on to argue that an email from Nitzan made it clear that he had closed the case against police and refused to declare Elkian innocent due to various public interests.
According to Smotrich, if Nitzan could drop the case for the wrongful killing of Elkian in order to preserve police honor, one would expect the former state attorney to drop a mere bribery case against the country’s prime minister.
What greater public interest could there be than letting the voters’ chosen leader conduct the nation’s business without being distracted by small details like expensive champagne and cigars?
He has a point.
In fact, his point is strong enough that it is the reason that US President Donald Trump is not on trial.
Many countries construct their government to give a head of state immunity while in office, as long as he is not accused of a violent crime.
They reason that corruption is bad, but putting a nation through the explosive politics of a leader resigning prematurely and new elections is worse.
There are two problems with Smotrich’s reasoning though when it comes to Israel and Elkian.
First, Israel made a different choice than the US.
Just as Israel’s Basic Laws explicitly do not force a prime minister to resign before conviction, they explicitly do not grant immunity from prosecution.
One can argue whether Israel or the US made the right choice, but maybe the most fundamental rule of law principle is that you do not change such laws midstream to please a public official.
Changing laws midstream pretty much signals that the law no longer limits whoever was accused.
The second problem with Smotrich’s analogy is that Nitzan did not merely close the case against the policemen and refuse to declare Elkian innocent to preserve the police’s honor.
In January, The Jerusalem Post had an exclusive interview with Nitzan, including delving deeply into the Elkian case.
In the Elkian case, then-police chief Roni Alsheich supported the theory that Elkian was a terrorist even when the Police Investigations Department (PID), which probes police misconduct, ruled that he was innocent and had been shot by a trigger-happy policeman.
Nitzan had to referee and he avoided defining Elkian, sufficing with ruling that the policeman who shot him could not be indicted.
Criticized by the Bedouin community for rejecting the PID’s view, Nitzan visibly bristled, telling the Post that if he merely is obligated to defer to the PID, “then there is no need for a state attorney... I am not a rubber stamp.”
He told the Post that, “The police thought he [Elkian] was an attacker and the PID thought he was not. It is not my job to decide this: It is my job to decide whether to file an indictment or not. Whether he was an attacker or not, the man who shot him thought he was an attacker. This would be a mistake of fact, so there can be no indictment.”
Next, the Post pressed Nitzan about whether he would have exonerated Elkian publicly if he had been convinced of his innocence. This could promote public healing with the Bedouin community. Once again, Nitzan was unapologetically dismissive.
He said that the state prosecution is always being accused of exceeding its authority.
Nitzan added that making statements beyond his legal authority regarding issuing an indictment would be falling into that trap.
But that was not all.
Although it was under condition that it not be printed, Nitzan specified to the Post a number of items found in Elkian’s residence which suggested jihadist tendencies.
The Post is only revealing this now following Alshich’s confirmation of these details in an interview on Sunday.
Seen from the perspective of these details, Nitzan did not declare Elkian innocent because this would be disregarding significant evidence to the contrary.
Coming full circle, Nitzan may have made the wrong call. But it was not an unreasonably wrong call and he had a genuine basis for his decision.
Maybe in another country, Netanyahu would not or should have been indicted. But in Israel that is not the current law of the land.
Collectively, these scandals show law enforcement in a variety of embarrassing lights, but they do not change the fundamental calculus of the Netanyahu case.
He may well be innocent – but he will need to prove that in court.