Setting the record, prosecution straight on Netanyahu trial, plea deal - opinion

Prosecution ineptitude and media malice have brought Israel’s democracy to its knees.

 ATTORNEY-GENERAL Avichai Mandelblit (left) and State Attorney Amit Aisman. Prosecution ineptitude and media malice have brought Israel’s democracy to its knees. (photo credit: YONATAN SINDEL/FLASH90)
ATTORNEY-GENERAL Avichai Mandelblit (left) and State Attorney Amit Aisman. Prosecution ineptitude and media malice have brought Israel’s democracy to its knees.
(photo credit: YONATAN SINDEL/FLASH90)

An old Chinese proverb says that when someone starts a statement with “the truth is…,” the audience is soon to be misled. There is no better example than the article “Facts and falsifications: Truth about Netanyahu’s trial” (January 14), written by a former director of the Criminal Department in the State Attorney’s Office, in response to an op-ed I wrote titled “Thank God there is a trial” (January 7).

Beyond the personal attacks and false assertions presented as facts, the former director distorted my arguments at least five times and did something similar to a key court ruling which reprimanded his former colleagues. Out of respect for the former director, I leave it to rational readers to review both articles and judge for themselves where the truth lies.

More importantly, the former director details the circumstantial evidence that he thinks warranted the indictment of the longest-serving prime minister.

The former director’s arguments and my responses are as follows:

Argument No. 1: “Elovitch desperately needed the approval of the Communications Ministry for various deals, one of them being the Bezeq-Yes merger, a deal that was worth close to NIS 100 million.”

 Israeli businessman Shaul Elovitch arrives to the District Court in Jerusalem for a court hearing in the case against PM Netanyahu who is on trial on criminal allegations of bribery, fraud and breach of trust. October 4, 2021. (credit: YONATAN SINDEL/FLASH90) Israeli businessman Shaul Elovitch arrives to the District Court in Jerusalem for a court hearing in the case against PM Netanyahu who is on trial on criminal allegations of bribery, fraud and breach of trust. October 4, 2021. (credit: YONATAN SINDEL/FLASH90)

Response: The deal was not a merger. It was an acquisition, Bezeq’s acquisition of Eurocom’s stake in Yes that would give it 100% of the company’s shares and make it a wholly owned subsidiary. The companies were private companies, the deal made perfect business sense, and it was duly approved by all the relevant organs. “A deal worth close to NIS 100 million” is a superficial statement and shows no direct evidence of any wrongdoing by Netanyahu.

Argument No. 2: “Elovitch failed to carry out the merger for over a year under then-communications minister Gilad Erdan and his director-general, Avi Berger, due to regulatory issues.”

Response: The Competition Authority approved the Bezeq-Eurocom deal in March 2014. The next step was to move it to the Cable and Satellite Commission for due diligence, but Berger delayed the process for an entire year (until March 2015), while ignoring and refusing to respond to the parties’ requests. The final approval occurred only on June 2015.

The prosecution claims that the “bribery deal” between Netanyahu and Elovitch was sealed on December 2012. The idea that someone would agree to a bribe and not deliver anything in return for 2.5 years is simply silly. At any rate, here, too, there is no direct evidence of any wrongdoing by Netanyahu.

Argument No. 3: “Netanyahu was desperately looking to get good press, which he deeply believed was needed to win the elections at that time.”

Response: It is difficult to argue with the prosecution’s political analysis, but this argument has nothing to do with the law. Importantly, we have now learned from a “crucial” state’s witness’s testimony that the Walla website was ranked No. 14 on Netanyahu’s internal list of media importance. Walla was marginal at best. At any rate, here, too, there is no direct evidence of any wrongdoing by Netanyahu.

Argument No. 4: “Elovitch continuously delivered complaints to Netanyahu, through Netanyahu’s people (Hefetz being one of them), regarding Erdan and Berger. At one point he sent Netanyahu a regulatory-related document regarding Bezeq-Yes. After reading the document, Netanyahu set a meeting with Elovitch, and they met two days later.”

Response: This is an outdated and irrelevant argument. The state’s witness, Nir Hefetz, testified that Netanyahu couldn’t care less about Elovitch’s grievances and that the said meeting had no influence on the deal that was signed at least seven months after the alleged meeting. Hefetz’s recollection of the event was refuted in court, and he had only faint memory of the actual date and details. At any rate, here, too, there is no direct evidence of any wrongdoing by Netanyahu.

Argument No. 5: “Elovitch became unprecedentedly involved in the coverage of Netanyahu and his family in Walla, and his interference in the content of the coverage was way beyond anything that the Walla people who testified said that they had ever seen.”

Response: Subsequent to the court’s demand, the prosecution submitted a list of 315 incidents in which Walla provided an “exceptional response” to Netanyahu’s request, as an annex to the indictment. To the prosecution’s dismay, a diligent, dedicated and technologically talented group of volunteers established an organization called Project 315, with the objective of examining all the alleged incidents. Their findings are staggering. It turns out that most of the prosecution’s claims are blatantly false.

For example, articles that the prosecution claim were removed from the Walla website upon Netanyahu’s request are still online. Other items that were claimed to have been published upon Netanyahu’s request never appeared. And almost all of the other requests were ordinary spokesman notices that appeared on multiple sites, including Walla.

Project 315 has remarkably found that other politicians, such as Isaac Hertzog, Yair Lapid and Naftali Bennett, received many more pampering articles and adherence to their requests than Netanyahu. Furthermore, Walla CEO Ilan Yeshua admitted in court that he never spoke with Netanyahu or his wife, while his underlings have testified that Yeshua told them that Sara Netanyahu called him and yelled at him. The exceptional response argument has been quashed and should be withdrawn. At any rate, here, too, there is no direct evidence of any wrongdoing by Netanyahu.

Argument No. 6: “During his involvement in the Netanyahu coverage, Elovitch specifically expressed that he needed Netanyahu to advance his needs. To top that, the frequency and volume of Elovitch’s involvement in the Netanyahu coverage intensified every time Netanyahu’s signature was needed.”

Response: Most of Elovitch’s complaints addressed blatant falsehoods about the Netanyahu family published by the hostile Walla team. Netanyahu “made a call” on a handful of cases where cruel deceits were published about his family. The judges commented that any reasonable father and husband would do the same, reflecting that there was no wrongdoing by Netanyahu.

Argument No. 7: “Netanyahu used the full weight of his authority to ensure that the Bezeq-Yes merger was approved. This included specific instructions that he gave to certain influential people in the ministry to work relentlessly to make the deal happen. Since these people have yet to testify, I will not elaborate on this point. I will just mention the fact that what Elovitch failed to achieve for over a year under Erdan and Berger – the Bezeq-Yes merger – he achieved in 20 days under Netanyahu and his new director-general after the regulatory restrictions that Erdan set were canceled.”

Response: The court hearing has shown this allegation to be false. Avi Berger, who served for six months as a director-general under Netanyahu, did not provide one instance of Netanyahu interference with his decisions. Berger and the Communications Ministry team issued the activation letter to the Cable and Satellite Commission in March 2015 (nine months after being requested to do so by the companies) to examine the deal. Netanyahu provided the final formalistic signature, as expected from the minister of communications, for this letter, only after it was approved by all the relevant regulators. At any rate, here, too, there is no evidence of any wrongdoing by Netanyahu.

Argument No. 8: “After the investigation began, the different parties involved (albeit not Netanyahu himself) moved to destroy any evidence of their relevant communications.”

Response: Hefetz testified that at no point did he or anyone else consider this a bribe. Noteworthy, it is alleged that Hefetz and Elovitch had multiple private business dealings, which were unknown to Netanyahu, and which Hefetz may have wanted to conceal from a future investigation or embarrassment. At any rate, as the director acknowledged, Netanyahu did not destroy any evidence of communication, and here, too, there is no evidence of any wrongdoing by Netanyahu

Argument No. 9. “Contrary to the version of events that is being heard today – i.e., that, unlike Erdan, Netanyahu was all in favor of the Bezeq-Yes deal and therefore ordered it to be advanced – in the many testimonies that he gave during the police investigation, he told a totally different story. The court will have to decide which one of his versions is truth and which is not.”

Response: Hefetz has testified in court that Netanyahu “could not care less” about the Bezeq-Eurocom-Yes deal, and that all he wanted was a free market of opinions in the media and fair competition. That was Netanyahu’s policy in the many other economic reforms he carried out over the years. Ultimately, this is what initiated the media and “legal” hunt after Netanyahu.

The public could more easily see the facts and fiction in a transparent and televised trial.

After six years, scores of lawyers, hundreds of investigators, illicit leaks that continue to this day and about a half billion taxpayer shekels, the prosecution has yet to present one piece of direct evidence against Benjamin Netanyahu. All the while, the circumstantial evidence is being quashed in court by witness after witness, day after day.

The former director noted that my criticism is “disturbing.” That is understandable. Several of his colleagues recommended to indict the prime minister on two or three counts of bribery. Now it is reported, by leading left-wing journalists, that the Attorney-General’s Office and some of those same colleagues are interested in removing the bribery claim from the indictment in return for a deal that would remove Netanyahu from politics. Poof!

A little over two years ago, the late law professor and Israel Prize laureate Ruth Gavison said Netanyahu will never get a fair trial. Two days ago a former vice president of the Tel Aviv District Court, Zvi Segal, acknowledged that the court will not fully acquit Netanyahu even if he is completely clean. The people can only hope and demand that the judges in Jerusalem prove Gavison and Segal wrong.

Most litigators tell their clients that “you can know how you enter trials, but you can never know how you’ll come out.” In Netanyahu’s case, no one can guarantee that there will be nothing, but it is now obvious that there was nothing.

Prosecution ineptitude and media malice have brought Israel’s democracy to its knees. Anyone who cares about Israel and the unity of its people should strive to put the case against Netanyahu to rest and commence in national reconciliation. That will be feasible after the record and the prosecution are set straight.

The writer is a lawyer and holds a PhD in international relations. He is a research fellow at the International Institute for Counter-Terrorism at Reichman University. The views expressed here are his own.