In trial of former Israeli PM Olmert, the court talked tough but sentenced easy
In their analysis of the Olmert sentencing, Ido Baum and Hila Raz say that only in rare cases does the court make the punishment fit the crime.
Strange as it may sound, the Jerusalem District Court Judges that sentenced former Prime Minister Ehud Olmert on Monday actually raised the bar on sentencing for breach of trust.
First of all, the judges stated that if not for the special circumstances in this case, it would have been proper to sentence Olmert to a prison term to be served via community service. But because of the circumstances – the fact that Olmert resigned of his own accord and the difficulties the cases in which he was acquitted had posed to the court – they decided to give him only a suspended sentence and a fine.
There is no precedent in Israel for the trial and conviction of a former prime minister. The case that most closely resembles Olmert’s is the fraud and breach of trust committed by Shimon Sheves, the former Prime Minister’s Office director-general.
After a lengthy and complicated trial that ended in 2004, Sheves, for his conviction on two counts of fraud and breach of trust, was fined NIS 50,000. Olmert, by contrast, was convicted of only one count and fined NIS 75,000 – the maximum fine allowed by law for this crime.
In their sentencing, in fact, the judges mention the Sheves ruling no less than seven times, and it is the only ruling quoted in a document that runs 27 pages. The judicial panel apparently searched and couldn’t find anything else remotely resembling Olmert’s case.
When courts sentence such senior public servants, they tend to go easy. The rhetoric of the judges was severe and conveyed a message of an uncompromising battle against government corruption. Compared to the rhetoric, the punishment looks light, but this is typical in cases involving senior government figures.
Only in rare cases, such as the sentences meted out to former ministers Avraham Hirchson and Shlomo Benizri, did the courts make the punishment fit the crime. If a message to this effect was meant to be conveyed by the Supreme Court in those cases, Olmert’s judges didn’t comply with it. On the contrary, the high status from which he’d fallen and the undermining of his public image – even though he was convicted of breaching the public’s trust – were seen as mitigating factors.
But the battle against public corruption will require another hike in the level of punishment if public servants and elected officials are to be deterred from actions that benefit themselves and their close associates at the expense of the public good, which they are responsible for.
Olmert was convicted of breach of trust for steps he took as industry, trade and labor minister, as communications minister, and as the minister responsible for the Israel Lands Administration during the years 2003-2005. At issue were decisions he made that favored clients represented by his close friend and former business partner, attorney Uri Messer.
The judges – Moussia Arad, Jacob Zaban and Moshe Sobel – determined that Olmert took these actions even though his close relationship with Messer posed a clear and serious conflict of interest.
In the sentencing document, their criticism of Olmert is pointed: “The conflict of interest stemmed from a series of links between the two that forged a strong relationship at a high level of intensity. They presented a real possibility that this closeness would exert an improper influence on the actions and decisions of the accused with regard to the clients of attorney Messer.”
The judges continue and explain that, “these bonds involved several areas: friendship, partnership in a law firm; legal representation; help in political contests; and a financial connection. The friendship went back decades; it was exceptional and always at the forefront, both in terms of the strength of the connection and in terms of the mutual commitment derived from it.”
The judges stated unequivocally that, “Olmert was forbidden to deal with or make decisions regarding any issue involving attorney Messer, in accordance with the ban on conflict of interest that constitutes a fundamental rule in our legal system … Olmert’s handling of any issue in which Messer was involved objectively undermined all the values protected by this ban, which is meant to assure fair administration, the propriety of administrative procedure and the public’s trust in the public service.”
With regard to the crime of breach of trust, the judges call it “one of the central violations [of rules] meant to strengthen and protect public authorities from the breach of three basic values: Ensuring the public’s trust in public employees, preserving the integrity of public employees and ensuring the sound operations of the public administration. As such, one must relate to this violation with all due seriousness, and refrain from classifying it as a technical violation that ostensibly involves procedures or technicalities.”
The judges also warn that “acting under a conflict of interests is a corrupting act and a danger to the public service.”
The seriousness of Olmert’s actions, the judges write, “Would ordinarily justify a real punitive response that would include a component of imprisonment that might be served through community service.”
The judges then issue a warning and prepare the ground for more stringent punishments for similar crimes in the future: “If not for the special circumstances of the case before us, there would be place to acquiesce to the prosecution request and include in the punishment a component of imprisonment to be served through community service.”
Such a response would be justified, they wrote, “given the unfortunate spread of the phenomenon of conflicts of interest in the public service in recent years, and the intolerably lenient fashion with which it is viewed by certain public employees.”
The judges then go on to explain their own lenient sentence.
“The current case is extremely distinctive. The accused served as prime minister and declared after only two years in office that he was resigning his post… interrupting the accused’s tenure as prime minister in the middle of his term is worthy of particular consideration. Also important is the fact that the accused decided to resign long before an indictment was served against him.”
The sentence also prepares the ground for Olmert’s return to political life, but just before the judges enable this, they write, “The prime ministership is the summit of the aspirations of any politician in Israel. The accused reached this summit, managed to take certain measures in various areas, and intended, in his words, to implement other plans in which he invested great hopes for the state and its citizens.
“All these were cut off because of a process of preliminary testimony and investigation of two cases that ended in acquittal. This state of affairs demands special consideration, despite the considerable seriousness inherent in the actions for which the accused was convicted.”
The judges also note that four years had passed from when the investigations against him in the Talansky case began until his acquittal of both those charges and those relating to Rishon Tours, and thus conclude that a suspended sentence and the maximum fine is sufficient punishment.
It is hard to ignore the criticism the court aims at the prosecution. Among the mitigating circumstances, the judges say, is the gap between the seriousness of the earliest allegations against Olmert (particularly the bribery allegations) in the Talansky and Rishon Tours cases that made a huge media splash in their time, and the relatively moderate charges filed against him in the end.
The court recalls that it wasn’t the Investment Center case (for which Olmert was convicted) that led Olmert to resign, but the other charges, the ones of which he was acquitted. The court reiterated that Talansky was a problematic witness who in at least some instances was found to be lying, and this, too, one must consider in Olmert’s favor.
These comments are important with regard to the prosecution’s future moves in all of the Olmert cases. If the prosecution believes that the district court erred in exonerating Olmert in the Talansky and Rishon Tours cases, it must seriously weigh appealing the acquittals. Since the district court believes that Olmert has already suffered considerably from the drawn-out legal proceedings, it might be worth it for the prosecution to appeal not to exact any further punishment for Olmert, but to focus on the issue in principle. Incidentally, this is what was done in the case of Shimon Sheves.
The prosecution must also reevaluate itself with regard to the Holyland case, in which Olmert is accused of soliciting and accepting bribes. With every passing day, it seems that the state’s witness, S.D., on whom much of the state’s case rests, is an exaggerator who tends to weave tall tales from which it is difficult to sort out what’s true and what’s not.
If S.D. turns out to be “Talansky II,” the prosecution is in serious trouble.