Analysis: What crimes could Olmert be charged with?

By DAN IZENBERG
As State Attorney Moshe Lador said Tuesday, it would be irresponsible to draw conclusions at this point as to whether or not Prime Minister Ehud Olmert ought to be indicted on the basis of Morris Talansky's testimony in the Jerusalem District Court. The prosecution's examination of a state witness goes as smoothly as butter. On the understanding that the state has chosen to present the witness because what he has to say will hurt the defendant (in this case, the suspect), the prosecutor lets the witness talk as much as he wants and does nothing to challenge or pressure him. It is the lawyers representing Olmert and his assistant Shula Zaken who will pressure Talansky, try to disprove the damaging things he said and demonstrate that his testimony is unreliable. Only after we hear Talansky's cross-examination will we be able to begin to seriously assess its legal significance. But if, for the moment, we assume that Talansky was telling the truth, he undoubtedly gave damaging testimony. He said he gave Olmert $150,000 in gifts over a period of about 14 years, including one gift of $68,000 before the primary campaign for the Likud slate of candidates in 2002. He added that he also brought money to Olmert from other sources, including donors who had apparently attended benefits for the political leader or guests at benefits for American Jewish organizations who had helped defray Olmert's expenses, sometimes over and above the expenses the organizations themselves had already given him. He described how Olmert insisted that the money be given in cash. Except for a contribution by Talansky family members for $30,000 in four checks for one of Olmert's campaigns, all the rest of the money was given to him in US greenbacks. Olmert received many of these gifts directly. According to Talansky, he did not open the envelopes to see how much there was, but stuffed them into his suitcase. Talansky did not know what happened to the money afterwards. From evidence released by police last week, however, we know that the only record of the payments was kept by Zaken in her computer. We also learned from Talansky that he was known in Jewish circles in the US as a close friend of Olmert and that he could bring the Israeli political leader to benefits held by institutions. Talansky said that Olmert's presence at a benefit was enough to substantially increase the revenue from donations. The connection raised Talansky's status among his peers and likely made his job as a fundraiser easier. Talansky also said Olmert had intervened with three wealthy Jewish businessmen, including Yitzhak Teshuva and Sheldon Adelson, to help him sell a mini-bar computerized system for hotels. This information, if it remains intact after Talansky's cross-examination in July, potentially leads to suspicions that Olmert violated several laws, including Article 284 of the Penal Law - fraud and breach of trust; the Public Service Law (Gifts) and two election funding laws; the Local Authorities Law (Funding) regarding elections for mayor of Jerusalem in 1993 and 1998; and the Political Parties Law on funding for the Likud Party leadership primaries in 1999 and the primaries for the slate of candidates for the Likud elections in April 2002. It is possible, but less likely, that the state would consider charging Olmert with violating Article 290 and 291 of the Penal Law, bribe-taking and bribery. If the state ultimately decides to indict Olmert, the most likely charges would be fraud and breach of trust. This provision is an especially problematic one because it does not state what specific act is prohibited. In fact, after a series of failures by the state prosecution to win convictions according to this article - including against Shimon Sheves, the director-general of the Prime Minister's Office under Yitzhak Rabin - there was talk about dropping it from the statute books altogether. Instead, after Sheves's full acquittal in the Supreme Court, the state asked for a second hearing to ask the court to interpret the law and determine if and when it could be applied. The hearing was held before a panel of nine Supreme Court justices headed by then-Supreme Court president Aharon Barak. In a lengthy decision, Barak provided as clear a description of the principles of the law as he felt was possible within the given text. Here are two quotes from his complex 44-page decision. "The criminal prohibition against breach of trust is a key tool in the struggle of society to preserve ethical behavior in the public service and among public servants, to prevent deviations among the ranks and safeguard public confidence in public servants," he wrote. "The criminal sanction is meant to guarantee that their loyalty to their responsibilities will be preserved. We want to build a society that will be based on honest administration, the rule of law and human relations shaped by honesty, decency and ethical behavior." Later, he wrote, "public confidence, ethical conduct and honest administration - each one by itself and all three together - are the essence of the criminal prohibition against breach of faith." The article, according to Barak, must include an element of conflict of interest that is short of bribery but more than a non-criminal conflict of interest situation. The state will have to decide whether the relationship between Olmert and Talansky fulfilled the criteria defined by Barak and the court. The state would probably also consider charging Olmert with violating the Public Service Law (Gifts). According to the law, "if a public servant receives a gift in lieu of his position, whether in Israel or abroad, whether it was given to him or to his partner or dependent children, and the public servant did not refuse to accept it or did not return it immediately, the gift will become the property of the state." The law goes on to say that if the public servant does not inform the state that he has received the gift, he will be liable to a fine three times the value of the gift he received. From what we know so far - not based on Talansky's testimony - Olmert did not return the money Talansky gave him and did not inform the state that he had received it. Finally, the state could consider charging Olmert with violating party funding laws governing local elections and the primaries. However, it is likely that the statute of limitations would apply to at least some of the campaigns. According to the 1993 Local Authorities Law (Election Funding), which applied during Olmert's two mayoral campaigns, the candidate for the special election for head of a local authority will not accept in between elections, directly or indirectly,
  • a sum of money exceeding NIS 5,000 from any given person and his dependents.
  • any contribution from someone who is not registered in the Israeli Population Registry -that is, any contribution given anonymously. Furthermore, a candidate in the special elections for local authorities must publish the names of the donors and the amount of money they have contributed.