Hearing, listening and deciding in good faith

Transparency in the hearing’s process would have minimized bias and enabled the public to decide for itself.

Israel's Prime Minister Benjamin Netanyahu listens to Avichai Mandelblit (photo credit: ABIR SULTAN/POOL/VIA REUTERS)
Israel's Prime Minister Benjamin Netanyahu listens to Avichai Mandelblit
Last week – after nearly four years of investigations, hundreds of witnesses, countless questionings, half a dozen state witnesses, an unprecedented “suspicions document” precariously published 40 days before the general elections and an outrageous amount of illicit and out of context leaks broadcasted almost every evening on national news – Prime Minister Benjamin Netanyahu was permitted to tell his side of the story behind closed doors.
Immediately after exiting the hearing chambers, the prime minister’s lead attorney declared that his pleas left the Attorney-General, Avichai Mandelblit, no alternative but to dismiss the allegations and close all the cases. Prosecutors sympathetic to the state prosecutor, Shai Nitzan, covertly and vehemently leaked that no new material was convincingly presented that should influence the Attorney-General’s decision. Certainly, not concerning the Cases 1000 and 2000.
Transparency in the hearing’s process would have minimized bias and enabled the public to decide for itself.
The final decision whether to indict is solely in the hands of the Attorney-General. He will surely weigh all the material he has absorbed over the past four years when considering the merits of the cases. But last week’s hearings were an integral – some would even say cardinal part – of the lengthy process. It is probably no coincidence that the Attorney-General, an observant Jew, chose to begin the hearings on a fast day that commemorates the senseless slaying of a Jewish leader 2000 years ago.
It is odd that amid these crucial hearings – perhaps the most important of their kind in the state’s history – that Liat Ben-Ari, a lead prosecutor, chose to leave for a South African safari. This jaw-dropping and patronizing act of detachment was widely criticized, but the public was once again reassured of the system’s impeccability by the same sympathetic state prosecutors.
It was explained that Ben-Ari’s trip may have been of bad style but of little substance. Her deputies and many ardent prosecutors, perhaps more capable than her, took detailed notes and will brief Ben-Ari upon her return. Joey Asch, the former head of the criminal division at the Attorney-General’s office, known as a brave officer and true gentleman, acknowledged via radio interview that Ben-Ari made a mistake but said she surely erred in good faith. Netanyahu would be fortunate to be afforded such a benefit of the doubt.
After hearing Netanyahu’s side of the story with an open mind and willing soul, as required by law, Mandelblit may conclude that the evidence in all or part of the allegations are insufficient. It won’t be the first time this has happened. Ironically, the most celebrated bribery case closed after hearing was the one against Avigdor Liberman in 2012, who aside from bribery was alleged to have done the worst of deeds. Tzachi Hanegbi and Ehud Olmert also had severe allegations dismissed after hearings and show cases against Yaakov Neeman, Reuven Rivlin and Rafael Eitan also resulted in nothing.
IN FACT, hundreds, perhaps thousands of cases, opened against “ordinary” citizens, have been altered or closed after hearings. It is unfortunate that worthy documentation of the cause or considerations for closing those cases is not to be found. This should be on top of the Minister of Justice’s to-do list.
The State Prosecutor’s office should no longer have the monopoly to decide what to investigate and what to overlook; what evidence is worthy and what is not; who will stand trial and who will not – without those “special” civil servants being bound to due process and transparency, just like every other ministry mandated to serve the Israeli public.
Unrelated to politics and perhaps most noteworthy was a capital market manipulation case led by Ben-Ari in 2011 against the CEO of Psagot, an investment house that the talented executive transformed from a mid-sized firm to the biggest and best of its type at the time.
After misinterpreting taped conversations, Ben-Ari was confident in her novel legal theories and convictions against the innocent chief executive. He was forced to leave his place of employment while an investigation proceeded sluggishly. Eventually, after the hearing, the prosecutors decided to close the case, but not before demanding that the innocent father of four agree not to sue Ben-Ari for malpractice. In that case, under duress, the law-abiding citizen made the difficult but wise decision to go on with his life and pass on bringing Ben-Ari to justice. Today, he heads the most successful hedge fund in Israel and leads a comfortable life.
Netanyahu does not have that prerogative. In the recent elections, he received a vote of confidence from nearly 60% of the Jewish voters in Israel and is obliged to represent them (as well as those who did not vote for him) to the best of his ability. He won’t walk away, leaving the country in the hands of his adversaries, without a fight – to the end.
The conclusions to this complex hearing, that summarizes nearly four years of legal procedures would usually take at least four months to summaries. Nitzan’s tenure terminates on December 17. He will do everything he can for the conclusions to be done beforehand. December 7 is his target date. The Attorney-General should take the needed time to reach an unequivocal decision – anything short of that will go down in infamy. Like Ben Ari, Nitzan has more worthy deputies who can carry the torch after his departure.
At the end of the day, Mandelblit will need to disregard the noise, examine the evidence and precedents, consider the lack thereof and decide whether there is a probability beyond reasonable doubt to convict the Prime Minister – in good faith.
The writer is a licensed lawyer and founder of Acumen Risk Ltd., a company that specialized in risk management platforms.