To justify Netanyahu plea deal, public interest must be preserved - opinion

Solidarity is a kind of “public credit” that we must use wisely given the real challenges facing the State of Israel. A continuation of this trial would be an irresponsible waste of that credit.

 A PROTEST against a plea deal with former prime minister Benjamin Netanyahu takes place last Saturday night near the Petah Tikva home of Attorney-General Avichai Mandelblit. Netanyahu and Mandelblit are seen in the photo on the placard.  (photo credit: CHEN LEOPOLD/FLASH90)
A PROTEST against a plea deal with former prime minister Benjamin Netanyahu takes place last Saturday night near the Petah Tikva home of Attorney-General Avichai Mandelblit. Netanyahu and Mandelblit are seen in the photo on the placard.
(photo credit: CHEN LEOPOLD/FLASH90)

The Left and the Right in Israel have united – uncharacteristically – in taking a stand against the plea deal the attorney general is attempting to strike with Israel’s opposition leader Benjamin Netanyahu. Haaretz and Israel Hayom, as the major media outlets of the two camps, are likewise voicing opposition to the deal. The left is urging Attorney General Avichai Mandelblit not to offer a deal and the right is calling for Netanyahu not to accept it.

It is easy and tempting to get carried away with these positions.

The Left is pointing to the deal’s lack of proportionality (the “mountain” of allegations withers to a “molehill” without a bribery charge), its violation of equality under the law and its subversion of the fight against corruption (if this is the outcome of an investment of tens of millions of shekels and decades of effort, why should anyone still bother conducting investigations?). The Left also claims that it would shatter current standards of punishment as exacted in similar cases (notably exemplified recently by the severity of the ten-year prison sentence imposed on Faina Kirschenbaum, a former deputy minister, for taking bribes amounting to NIS 2 million).

Moreover, opponents on the Left argue that the plea agreement constitutes a “surrender” to Netanyahu, resulting from pressure he exerted on the rule of law, and the deal amounts to the triumph of the sinner. In the future, too, others will attack the system in the hope that it will “fold” in front of them. All of these things, it is claimed, will have dire consequences for public trust in the legal system.

The Right is also opposed to the deal: Netanyahu’s admission of fraud and breach of trust would pull the ground from beneath the claims that the charges against him were fabricated for political reasons. The core of the ugly public campaign against the police, the state prosecutor, the attorney-general, and the court system was that there was “nothing there” and everyone relied on Netanyahu to prove it in the legal sphere.

 THEN-PRIME MINISTER Benjamin Netanyahu and then-cabinet secretary Avichai Mandelblit sit alongside each other a cabinet meeting in 2014. (credit: YONATAN SINDEL/FLASH90) THEN-PRIME MINISTER Benjamin Netanyahu and then-cabinet secretary Avichai Mandelblit sit alongside each other a cabinet meeting in 2014. (credit: YONATAN SINDEL/FLASH90)

The plea deal pops the balloon inflated by Netanyahu and his faction. If the deal is signed, how will senior Likud officials justify having shamefully stood at the defendant’s side on the courthouse steps – proclaiming his innocence before the trial even started? The deal would make it clear that the Likud ministers, who acted like puppets on strings, had been deceived. Netanyahu himself would cut the strings and leave them to stew in their own embarrassment.

BOTH SIDES are wrong: The deal, under correct, scrupulous conditions, is the “least-bad” option and should be supported. The Left needs to understand that although “equality” in general, and “equality before the law” in particular, are extremely important values, they are not absolute values. Under Israel’s legal system, no value is absolute, including the right to life. In any case, the significance of maintaining equality in the face of other values that may be undermined must be carefully examined and balanced.

The violation of equality is significant in this case precisely because of its enormous public visibility. Insistence that the full execution of the law is required, ostensibly, is precisely because of the scandalous defiance of Netanyahu and his supporters against the state. In my view, that defiance is even more serious than the accusations described in the indictment. And yet, I would argue that all of these things are outweighed by the public interest in cooling the heat of controversy.

Should the trial proceed, we may expect continued arm wrestling between sectors of the polity for at least the next five years. Netanyahu’s trial has become a maelstrom that is sweeping Israeli society into a deep abyss. Socially, extremists on both ends deny the legitimacy of the other’s positions. Institutionally, there is a growing erosion of the authority of state organs entrusted with mediating the matters that divide Israelis.

The Netanyahu trial is a disaster for Israeli solidarity. Solidarity is a kind of “public credit” that we must use wisely given the real challenges facing the State of Israel. A continuation of this trial, which tears society into camps and fuels a culture war between Israelis, would be an irresponsible waste of that credit – like the burning of stored grain during the great revolt of the Second-Temple-era – and would have a real impact on national resilience.

Furthermore, the ongoing saga has lifted the lid on a deep pit in which antidemocratic forces within Israeli society are simmering. Miraculously, the Zionist movement – from the First Congress until today – has run on an unconditional commitment to democracy.

Since the State of Israel’s founding, that commitment has translated, among other things, into strengthening the status of the judiciary and respecting the rule of law. Even a powerful leader like former prime minister David Ben-Gurion in the state’s first decade – a fateful period saturated with challenges – could appreciate the importance of the checks and balances imposed on him by the judiciary while he controlled the other two branches of government. Former prime minister Menachem Begin, too, and after him Netanyahu until recent years, were careful to respect the judiciary, having an internalized understanding that without it, “men would devour one another alive.”

IN THE 21st century, however, new winds have been blowing around the world; winds that challenge these conventions, or interpret them in a very “thin” way. And so it is with us. The Netanyahu trial is a dangerous catalyst for those forces seeking to liberate the representative authorities – the Knesset and the government – from the critical and restraining power of the professional authority, the judiciary. The Netanyahu trial has unleashed mass mobilization against the legal authorities, to the detriment of us all.

Israel needs social calm, a revitalized state spirit and a renewed focus on the national challenges it faces. The Israeli agenda has been hijacked by Netanyahu’s legal saga, as evidenced by the chaotic political system in recent years. The time has come to mitigate the damage and restore our sanity.

The Right must ask itself why Netanyahu is courting the deal. Unlike the senior Likud officials, who bear no cost due to the length of the trial, Netanyahu and his legal advisers know that the legal machine will continue to toil, and that the possibility of an actual prison sentence is real. Belligerent rhetoric and public incitement will not affect the legal outcome, and this is a risk Netanyahu understands well.

But in order for the plea deal to be justified, it must be strictly ensured that the public interest, which allows a deviation from equality, is preserved. The deal must be formulated in a way that will leave Netanyahu and his faction no incentive to continue their campaign against the justice system. The agreement should, therefore, require Netanyahu to declare that he erred in his dealings with the legal system, and the prosecution should insist on a finding of moral turpitude.

Netanyahu’s demand that the decision regarding moral turpitude be postponed to a later date, if and when he seeks a return to Israeli politics, should be rejected. A postponement would spur Netanyahu and his supporters to continue their attack on the judicial system, in the hope of deterring it from disgracing him in the future.

In his youth, Netanyahu risked his life for the State of Israel during his military service, and he has dedicated his adult life to advancing the state. Like Saul, the first Jewish king, he has, in the twilight of his rule, demolished the structure he spent his life building. The plea deal, if accompanied by publicly taking responsibility, will allow him to restore his constructive role in Israeli history, even if his disgrace would render him ineligible to serve the country by holding public office.

The writer is president of the Jewish People Policy Institute and a professor of law at Bar-Ilan University.