Indicting Netanyahu before elections undermines democracy

The timing of such actions will severely impact the election results by making Netanyahu appear guilty without affording him the entire time needed to defend himself in a full indictment hearing.

Israel's Prime Minister Benjamin Netanyahu casts his ballot for the parliamentary election as his son Yair stands behind him at a polling station in Jerusalem March 17, 2015. (photo credit: SEBASTIAN SCHEINER/POOL VIA REUTERS)
Israel's Prime Minister Benjamin Netanyahu casts his ballot for the parliamentary election as his son Yair stands behind him at a polling station in Jerusalem March 17, 2015.
In most leading Western democracies, sitting national political leaders such as prime ministers or presidents are immune from criminal indictment or criminal prosecution in criminal courts as long asthey are in office. The public policy and legal reasoning behind such legal consensus in the US, France, Britain, Germany, Canada and Australia is the prevention of politically motivated investigations and the undoing of national elections as decided by the voters.
It seems that in Israel, not only can an attorney general indict a popular sitting prime minister, but it seems that he can announce his
intentions to indict, pending an indictment hearing, a few weeks before the general election set for April 9. Furthermore, he will do it, not based on precedents established in Israel or other democracies, but make the decision based on consultations with ex-Supreme Court justices and attorney generals he handpicked randomly.
According to Israeli law, after an attorney general announces his intent to indict, a pre-indictment hearing requested by the defendant will begin, after which the final decision to indict will be made by the attorney general and a trial will follow.
The problem is that the timing of such actions will severely impact the election results by making a prime minister legally innocent until proven guilty appear guilty without affording him the entire time needed to defend himself in a complete indictment hearing prior to the election.
It is especially true, since in previous high-profile criminal cases, the pre-indictment hearings took several months and even longer. In 2012, minister Avigdor Liberman managed to avoid obstruction of justice and money laundering charges after a hearing process that lasted more than a year and included several meetings between his lawyers and then-attorney-general Yehuda Weinstein. In a case against former prime minister Ariel Sharon, the pre-indictment hearing in which evidence was put forth persuaded prosecutors to drop the case entirely.
It is reported that Attorney-General Mandelblit noted that he was under “an obligation to decide” to announce whether he will indict Prime Minister Binyamin Netanyahu on corruption charges before the April 9 elections so that citizens are fully cognizant of the legal proceedings against the prime minister before heading to the voting booth in the spring. The expected date to complete the investigation and publish the intent to indict is February 20, six weeks before the elections because the deadline for submitting final party lists to the Knesset is February 21.
Apparently, the attorney-general has decided that his office not only will enter into politics but also interfere in the most decisive aspect of politics in a democracy – the national election.
Early polling indicates that Netanyahu will easily win the election and his Likud Party will get double the seats of the second-place party, but if the attorney general decides to indict Netanyahu publicly a few weeks before the election, he can lose the election, even if the cases are dropped against him later on when he proves his innocence. Such a result will make the Attorney General the judge and jury, deciding that a person is guilty until proven innocent, which will undermine the public trust in the integrity of the judicial process, thereby undermining the election results and Israeli democracy.
Any attorney-general who cares about keeping the public image of a non-political justice system should try to follow the examples of other leading democracies with older democratic traditions regarding the indictment of a sitting head of government.
The prevailing view among legal experts in the US is that a president is immune from prosecution or indictment while he is in office, but the US Constitution includes detailed instructions about how Congress may remove a president who has committed serious crimes of bribery, treason and other high crimes or misdemeanors, through impeachment in Congress and sets a high bar to convict and remove. That’s why in the US a majority vote in the House of Representatives to impeach a president and a two-thirds majority of the Senate is needed to convict him and remove him from office.
Consequently, in the last 230 years of American history, only two presidents were impeached by the House of Representatives, Andrew Johnson and Bill Clinton, who both were acquitted later by the US Senate when the 67 votes necessary for conviction did not exist. The reasoning is that a president will be judged by the House and the Senate, who are in turn judged on election day by the American people.
In France, a sitting president and other heads of state are protected and immune from indictment or criminal prosecution during their five-year term in office but can be impeached by the parliament if it deems the president guilty of crimes.
But even if impeached and removed from office, he still cannot be indicted in criminal courts and can maintain his immunity for the remainder of his initial fiveyear term.
However, similar to the high bar set in the US, a two-thirds majority of both houses of the French parliament is required to vote to convict and remove a president from office.
Like Israel’s prime minister, Germany’s political leader, the chancellor, is not directly voted to the top office, but normally runs as a member of the parliament and needs to create a coalition of parties to get the majority in the parliament.
In Germany, the sitting Chancellor, like every other member of parliament, is protected and immune from indictment or prosecution.
A simple majority is needed to withdraw immunity and the politician‘s protections.
Any parliamentary vote to withdraw immunity from a chancellor would usually also be accompanied by the loss of the Chancellor’s office and new elections.
In Britain, New Zealand, Australia and Canada, members of parliament and leaders are protected from investigations into alleged crimes committed in office only. British lawmakers can also impeach a sitting leader or fellow parliamentarian, but the last time parliamentarians chose to go down that path was in 1806, and no prime minister has ever been impeached. Today, Parliament would likely topple a prime minister accused of crimes by triggering a vote of no confidence.
A review of the Israeli court decisions indicate that American and other Western countries’ laws are frequently cited by the Israeli Supreme Court as precedent in analyzing Israeli laws. Even though there is no Israeli law prohibiting indictment of a prime minister, the attorney-general must try to follow the spirit those legal precedents and public policies in most leading democracies and must delay his decision to indict until after the prime minister is out of office or at minimum let the voters make their decisions without putting his finger on the scale.
If the attorney-general is allowed to indict or announce his intent to indict a sitting prime minister a short time before an election, a new dangerous precedent will be created that will make The Office of the Attorney General the most powerful office of government, above both the legislature and prime minister – a king maker.
The writer has been a criminal attorney and law professor for the last 25 years in Kansas City, Missouri. Her blog: www.shoularomanohoring.