Why High Court will green light indicted Bibi as PM - analysis

If the High Court had wanted to oust Netanyahu, it had two earlier points which were much better.

Prime Minister Benjamin Netanyahu  (photo credit: REUTERS)
Prime Minister Benjamin Netanyahu
(photo credit: REUTERS)
Attorney-General Avichai Mandelblit, the man who filed a bribery indictment against Prime Minister Benjamin Netanyahu, has given the prime minister a green light to remain in charge.
The High Court of Justice - which will hear petitioners on Sunday and Monday seeking to topple Netanyahu due to the indictment as well as objections to controversial changes to Israel’s Basic Laws which are part of the Netanyahu-Benny Gantz coalition deal – will likely follow suit.
How do we know?
The High Court has fallen over itself now several times for seven months to avoid ruling on the issue and has rejected several petitions with at least three different viable strategies for disqualifying him.
If the High Court had wanted to oust Netanyahu, it had two earlier points which were much better.
One was shortly after November 21 when Netanyahu was indicted, so as to make Gantz the only one who could become prime minister and avoid the March 2 election entirely.
Or it would have done it shortly after January 28 when Netanyahu dropped his campaign for immunity and the indictment was finally filed with the courts.
There would have been a March 2 election, but Netanyahu’s early disqualification would have given the Likud time to pick a new leader.
But repeatedly the High Court said it was premature to address the issue.
Yet, what does premature mean for someone who has continued serving as prime minister for seven months. And how could it be premature if they let Netanyahu run for reelection in March – an election in which he increased his and Likud’s power to 36 seats?
Agree or disagree with the High Court’s legal gymnastics to avoid ruling on the issue – the point is the justices want no part of this issue.
From the start, they took a hint from Mandelblit that the safest strategy (to avoid retaliation wiping out half of their judicial powers) was to either hope Netanyahu would lose or that any new government he forms is done with decisive enough support to quiet criticism of the High Court for skirting the issue.
Gantz has provided them that additional political cover by giving Netanyahu legitimacy from the country’s political center and calling on the justices to let Netanyahu continue to serve due to the corona crisis and to avoid a fourth election.
Mandelblit has even offered that other future prime ministers could be ousted for being indicted, but that corona plus avoiding fourth elections give Netanyahu a special pass.
And the justices care about elections.
Shortly before the March 2 election, the High Court came right out and said, “The election period is a politically sensitive time, so it is fitting to act with heavy restraint… this is in light of the most complex and sensitive period without historical precedent within which the State Israel currently finds itself.”
Many will criticize the court for worrying about politics and the consequences to its powers of forcing out Netanyahu and taking a pass.
But its statement about election almost mirrored the view voiced by Mandelblit word for word.
True, the court left the door open for a later petition.
But practically speaking and from the tone of the ruling, the court made it clear it would not force out Netanyahu pre-conviction if the general public did not drop him.
According to the plain meaning of the basic laws, a prime minister – unlike other ministers – can remain in office until convicted and all appeals are exhausted.
Numerous legal officials have said that the High Court could force Netanyahu out for being indicted for bribery since it has forced every minister for around 25 years to resign upon indictment.
But the court’s actions show unambiguously that it wants no part of forcing Netanyahu out based on a disputed interpretation.
Furthermore, the High Court allowed Netanyahu’s trial to be delayed from March 17 to May 24.
Yes, corona provided a decent excuse.
However, it would have been easy for the justices to insist on at least a videoconference hearing to keep things moving.
Simply put, the justices are not rushing to toss out Netanyahu any earlier than when he is potentially convicted.