Exclusive: Shai Nitzan, the anti-corruption crusader

Shai Nitzan tells the ‘Post’: Netanyahu should be tried, but I can live with any verdict

SHAI NITZAN: The law is not math; there are always disagreements. (photo credit: MARC ISRAEL SELLEM/THE JERUSALEM POST)
SHAI NITZAN: The law is not math; there are always disagreements.
Prime Minister Benjamin Netanyahu “should be brought to trial, but I can live with whatever the court decides,” outgoing State Attorney Shai Nitzan told The Jerusalem Post this week in an exclusive interview.
Nitzan declined to predict what the trial’s result would be on bribery charges, but said that, “I believe that the truth will be victorious and that justice needs to be done even to senior officials – even to the most senior of them all – just the same as for someone less powerful.”
“Look at what happened with [former prime minister Ehud] Olmert. How many unfair attacks did they dump on [Nitzan’s predecessor Moshe] Lador for what he did [by indicting Olmert]! But in the end, the court convicted him for his crimes, and the path was the right one.”
The outgoing state attorney’s implication was clearly that at the end of the trial against Netanyahu, Nitzan would be vindicated of any criticism from Netanyahu supporters that there should have been no indictment.
Nitzan has been in the eye of the storm of criticism from Netanyahu and his supporters.
Having served in the state prosecution for over 30 years, he became the country’s chief prosecutor in 2013, running the huge apparatus until last week.
From defending the Shin Bet against allegations of torturing Palestinians, to prosecuting right-wing settler activists and combating the UN’s anti-Israel 2009 Goldstone Report, Nitzan was used to needing tough skin even before 2013.
His intensity – even when meeting one-on-one in the safety of his open and light-filled house on the outskirts of Jerusalem – is striking, though he is capable of a broad smile, especially when issuing one of his trademark sarcastic comments.
Moving on to cases 1000, 2000 and 4000, the Post asked Nitzan how he thought key state witnesses and former close Netanyahu aides Nir Hefetz and Shlomo Filber would hold up in a future Netanyahu trial.
The Post noted concerns that Hefetz has shown signs of being a potentially unstable witness, whereas Filber has developed the reputation of being a more stable witness with greater credibility.
He responded that, “We don’t just use state witnesses without having evidence that strengthens them [their testimony.] State’s witnesses are always complex.
“But once you look into things… and see that there is a variety of evidence that strengthens their testimony – including text messages and who was where in a particular place at the same time, and... overlapping, consistent testimony – we take state witnesses when there are other things which strengthen their testimony,” he said.
“It’s good for a person to always be cautious, but it’s not a matter of worrying,” he said: “I thought that their testimony was trustworthy.”
SHIFTING TO Case 3000 – the “Submarines Affair” – Nitzan supported Attorney-General Avichai Mandelblit’s decision not to even treat Netanyahu as a suspect, including not to question him under caution. The Post asked Nitzan if he thought that the prime minister was really completely in the dark about the scheme, when so many of his top aides are being indicted for their involvement.
Nitzan responded: “I don’t know if he knew or didn’t know. We go according to evidence… Bibi does so many things; there are so many people around him. So the claim – that if the people around him perpetrated a crime [then] he must have known – is not a serious claim,” he stated. Regarding whether Netanyahu knew about the scheme, he said, “I have no idea,” but added, “I think not.”
“And even if [that claim] might be right, that is not enough to criminally interrogate a person,” he said.
The Post also discussed with the outgoing state attorney why he disagreed with Mandelblit about how to charge Netanyahu in cases 1000 and 2000, the “Illegal Gifts Affair” and the “Yediot Aharonot-Yisrael Hayom Affair.”
Whereas Mandelblit only indicted Netanyahu for fraud and breach of trust, Nitzan had sided with the vast majority of state prosecutors who believed that the charge in both cases should have been full on bribery.
It was a rare public break between Mandelblit and Nitzan, though the two have downplayed their disagreement.
Asked why he and Mandelblit reached different conclusions, he said, “It’s not OK for me to speak about these cases, so I am not going to answer you exactly. But generally, it is a question of [each individual’s] analysis. The law is not math; there are always disagreements.”
“There is an analysis of the evidence, an analysis of the law – and it either rises to the level of bribery or ‘only’ to the level of breach of trust… There were two positions and both of them were within the spectrum of reasonability. At the end, he is the attorney-general and he… decides – and that’s it.”
“I thought that there was bribery: I thought there was an offer and that both sides agreed to the deal, because otherwise there was no bribery… But the court must decide this case,” Nitzan stated.
No matter how many ways the Post asked, Nitzan would not share his secret personal views about whether Netanyahu is legally obligated to resign now that he has been indicted. Having stepped down last week, he did not even know that Mandelblit had filed a brief two days earlier about the issue.
It was not surprising that Nitzan dismissed general questions about the timing of his and Mandelblit’s decision regarding Netanyahu.
The question of the timing of their decisions has become a hot political football. Nitzan reiterated a very unambiguous fact: he had announced that the prosecution was close to a final decision days before Netanyahu announced the April election. This means that no one could accuse the prosecution of politicizing the timing.
However, the Post did press him as to why they announced the final indictment on November 21 – which was during the 21-day final period to form a government – as opposed to a few days earlier, when Blue and White leader Benny Gantz had the mandate, could have benefited and possibly could have formed a government.
With a dead serious look on his face, he replied, “I don’t want to help Bibi or Gantz, and [I] don’t want to negatively impact” them either. Rather, “we wanted to do it as fast as possible,” without sacrificing being comprehensive and professional.
NITZAN HAS made some hard calls in high profile cases not involving politicians.
Regarding the Um-al-Hiran village demolition incident in which Bedouin Yaakub Abu Elkian was killed by a policeman who controversially claimed that Elkian was a terrorist, Nitzan pushed back hard against his critics.
In the 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 policeman who made a trigger-happy mistake.
It came down to Nitzan deciding between the sides – and he chose not to decide what Elkian’s role had been. Instead, he limited himself to explaining that regardless of Elkian’s intentions, the facts were hazy enough that the policeman who shot him could not be indicted.
Criticized by the Bedouin community for not accepting the PID’s view, he bristled, saying 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 continued, saying that, “I saw all of the actual evidence, and not just a summary. 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.”
Pressed if he would have exonerated Elkian publicly if he had been convinced of his innocence, in order to promote public healing with the Bedouin community, he demurred.
Nitzan said that the state prosecution is always being accused of exceeding its authority – and making statements beyond his legal authority regarding issuing an indictment would be falling into that trap.
He was also attacked for giving Rabbi Yoshiyahu Yosef Pinto a one-year jail sentence as part of a plea deal for corruption in which Pinto turned state’s witness against former Lahav 433 police commander Menashe Arbiv.
While Arbiv received no jail time upon his conviction for corruption and Pinto likely got significantly reduced jail time, Nitzan said that the plea deal had been worth it because it enabled the prosecution to clean out a corrupt official from the highest echelons of the police.
WITH A somber look on his face, he discussed his rocky relationship with Acting Justice Minister Amir Ohana.
Nitzan said that he had had great working relationships with center-left Tzipi Livni and with right-wing Ayelet Shaked as justice ministers for around 18 months and four years respectively.
He said that he met with them regularly, usually once every two weeks, and that while they did not always agree, “we always respected each other.”
In contrast, he said that he and Ohana only met twice and only in his first month around June, but that the justice minister never complained to him directly about the prosecution.
Since then, he said that Ohana had cut him off. “For five months we did not speak at all [not even by telephone]. He, as the minister, is the one who issues invitations to meet… I never heard of a minister who does not speak to a senior civil servant.
“I was very surprised when I heard his claims against the state prosecution. I would think he would tell them to me and ask for my view in order to possibly fix things,” said Nitzan. “I only heard about them for the first time in the media.”
He added that, “there is no basis for the accusation of there being a state prosecution within the state prosecution [implications of a deep state], as if criminal probes are manufactured – there is nothing like that.”
Nitzan got even more spirited in rejecting calls to probe alleged leaks to the media from the prosecution and the police relating to Netanyahu’s cases.
First, he argued that most leaks were coming from a variety of defense lawyers and family members (Netanyahu is only one of many defendants in the cases) with a variety of agendas (some just want coverage), and that all of them would need to be questioned in such a probe – which would itself be problematic.
Next, he said that parallel to probing leaks about the cases, there has been a long-standing policy not to probe leaks even of most security issues (with very few exceptions) in order not to be going after politicians, the media and civil servants.
He asked why, if Netanyahu had no agenda, he was not first calling for probes into security-related leaks. Nitzan also rejected the idea of a narrow pilot-program focusing on only a few cases of leaks, such as in the prime minister’s case, as inviting legal claims of arbitrary enforcement.
Ohana responded to Nitzan’s comment to the Post saying “From the moment that it was made clear to me that Shai Nitzan was providing briefings against me to reporters (and in the last state prosecution conference, a new event: from the stage itself!), I had no interest in additional meetings with him... I would suggest to he who stood at the head of the system for six years to internalize his role in reducing the public’s faith in the prosecution to a new low, instead of criticizing the minister who just arrived recently.”
Nitzan denies he gave any anti-Ohana briefings to reporters or otherwise criticized Ohana before Ohana went on the attack publicly against the prosecution. 
NITZAN EXPRESSED impatience that he believed the media does not cover the state prosecution’s achievements.
He said that during his era, the fight against corruption was unmatched. He noted that he gave the order to sign a plea deal with Shula Zaken. This led to reopening the Talansky Affair against former prime minister Ehud Olmert and an eventual conviction, despite an initial acquittal.
The outgoing state attorney noted a line of convictions in the Yisrael Beytenu case, against organized crime in Case 512 and other cases – and seizing NIS 700 million in civil cases for the state.
He rattled off a list of convictions of local government officials in Or Yehuda, Mateh Yehuda, Ashkelon, Yehud, Ramat Gan, Nazareth Illit, and of stiffer sentences won on appeal relating to Bat Yam, to former Ashdod ports head Alon Hassan and to former top police official Niso Shaham.
Nitzan has also been credited with making the state prosecution a more diverse workforce. “We achieved a revolution: We opened up the prosecution to more Arabs, Druse, haredim (ultra-Orthodox), Ethiopians and disabled persons.”
He said that there was a 70% relative rise in Arab prosecutors, and that the percentage of haredim and Ethiopians had doubled.
Nitzan said he was personally involved in attending conferences to recruit Israeli-Arabs, and that he teaches a course at Kiryat Ono for haredim, including doing some recruiting there.
Kiryat Ono ultra-Orthodox campus director Rabbi Yehezkel Fogel praised Nitzan in a letter, saying: “Thanks to you, many dozens of our graduates have done their clerkships in parts of the prosecution… the Attorney-General’s Office and even in the Supreme Court.”
Fogel said that, “When you presented for our students, you left a deep impression” – of being a top-notch jurist guided solely by a search for the truth and justice.