Mandelblit was wrong on two counts

The attorney-general, who seems a man of integrity and intellect, surely scrutinized the evidence and lack thereof with diligence.

By OPHIR FALK
PRIME MINISTER Benjamin Netanyahu. (photo credit: REUTERS)
PRIME MINISTER Benjamin Netanyahu.
(photo credit: REUTERS)
Israel, a vibrant democracy that treasures its rule of law like few others, may have overreached; investigations have been opened against every prime minister in the last three decades.
Now, after years of callous claims and incessant investigations against Prime Minister Benjamin Netanyahu, Attorney-General Avichai Mandelblit is considering indicting him, pending a hearing, for three counts of breach of trust and one count of accepting a bribe concerning favorable news coverage by an online news outlet. Mandelblit also decided to dismiss severe accusations against Netanyahu and his family, including a scandalous submarine sales story peddled by a political adversary.
The attorney-general, who seems a man of integrity and intellect, surely scrutinized the evidence and lack thereof with diligence. From a legal perspective, the “suspicions document” published the other week may rest on reason. From a public perspective, Mandelblit was wrong on two key counts: precedence and timing.
Precedence
The guiding legal principle in a decision to indict a public figure in Israel is the attorney-general’s assessment of whether a conviction, if charged, is a high probability. The need for the attorney-general to evaluate such a high bar is required when dealing with public servants, since the process can be politically manipulated – and the implications of conviction are not limited to the individual charged, and possibly will have an adverse effect on the public. From a public perspective, when deciding whether to indict a prime minister, the bar should be higher – for a popular prime minister even more so.
Mandelblit surely studied the various cases brought against Yaakov Neeman, Reuven Rivlin, Avigdor Liberman and Rafael Eitan – four former ministers who served in different Netanyahu governments whose cases were dismissed before trial or who were eventually acquitted. Mandelblit may have also familiarized himself with the acquittal of Netanyahu’s former attorney, the late Yaakov Weinroth, who is dearly missed today in Netanyahu’s defense. In these key cases, the careers and reputations of politicians, their constituencies and advocates were at stake. Now with Netanyahu, even more may be at stake.
Mandelblit should have closely examined precedence of prime ministers who were cleared by former attorneys-general. Manny Mazoz – who now sits on Israel’s Supreme Court – may eventually be called upon to rule in Netanyahu’s case, and will undoubtedly recall his decision not to prosecute Ariel Sharon, who faced much more serious and substantiated allegations than those Mandelblit is currently considering against Netanyahu.
There are other cases as well, where attorneys-general decided not to prosecute prime ministers, but the Mazoz-Sharon case is most compelling. There too, a more seasoned state prosecutor, Edna Arbel, and her legal team argued vehemently that Sharon should be prosecuted. Mazoz decided otherwise.
Mandelblit should have considered whether convictions for the relatively minor allegations against Netanyahu would disqualify him from serving as prime minister. Have such allegations ever disqualified any elected world leader from serving his people? Nothing close has happened before. There are those who contend that Ehud Olmert was guilty of lesser charges, but the prominent prosecutor in that case, Mr. Uri Corb, who is also very familiar with Netanyahu’s case, begs to differ. 
It is questionable whether Mandelblit considered all the relevant precedents, but it is without question that the timing of his announcement was awkward.
Timing
The Israel Police and the Justice Ministry had close to four years to investigate and consider the allegations against Netanyahu. Mandelblit chose to publish his considerations just 40 days before the general elections. That was wrong. Mandelblit attests that the general election process is better served if his considerations are disclosed before Israelis vote. That may have been a fair argument had Mandelblit disclosed the information prior to party primaries determining candidates for Knesset, or prior to party lists being submitted to the Knesset Election Committee, after which time mergers and changes between and within political parties are no longer permitted. By disclosing half-baked considerations after the lists were submitted, and without giving the prime minister the opportunity to reply before the elections, Mandelblit has compromised his own argument and the democratic process.
Many jurists may consider these arguments to be legally immaterial and limited to nonbinding public discourse. The law, however, is lifeless without overriding public confidence in the system and those who run it.
Hearing
When Netanyahu’s side of the story is fully heard with an open mind and willing soul, as required by law, Mandelblit may very well conclude that the allegations were insufficient. It won’t be the first time that has happened; several cases have been closed after hearings. Dominant ministers such as Liberman, Tzachi Hanegbi and Olmert have all had more severe charges closed after being heard.
Most noteworthy was a case led by Liat Ben-Ari in 2011, against a capital market chief executive. After misinterpreting transcripts of numerous taped calls, Ben-Ari was confident in her convictions of corruption against the innocent executive. He was forced to leave his place of employment while a drawn-out investigation sluggishly proceeded. Eventually, the prosecutors, in disgruntlement, backpedaled to close the case after the hearing. In closing the case, the innocent man agreed not to sue the prosecutor for malpractice.
If, as most polls indicate, Netanyahu is reelected on April 9, this could be a likely outcome of his hearing.
If indicted, the prime minister and the country will be dragged into a lengthy litigation process, as the politicians who peddled the allegations against Netanyahu will most probably sit in Israel’s parliament – perhaps even at its helm.
The writer is a visiting scholar at Georgetown University. The opinions expressed here are his own.