Shula Zaken and Ehud Olmert in court.
Shula Zaken and Ehud Olmert in court. Photo by Tomer Appelbaum
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The High Court of Justice's rejection of a petition against the decision not to prosecute Ehud Olmert in connection with the sale of the state's stake in Bank Leumi was to be expected. After skillfully analyzing all aspects of the case, State Prosecutor Moshe Lador decided not to indict Olmert; the reason cited was insufficient evidence, as opposed to lack of guilt. Only the latter reason has the power to remove all taint of guilt from an individual's actions.

Lador walked the tightrope between ethical blemishes in the conduct of an elected official and evidence that the official's conduct constituted the criminal offense of breach of conduct. Lador deliberated, as his ruling shows, between the "black" of criminal action and the "gray" of morally unacceptable behavior.

Lador did not find in Olmert's conduct the "severe aspect" that is necessary for a criminal conviction, according to the precedent established in the Shimon Sheves case, though there was a conflict of interest between Olmert's private social relationships with figures involved in the tender and the public interest he was obliged to protect as acting finance minister.

The High Court, according to Justice Edna Arbel, a former state prosecutor, found Lador's late-2008 ruling "well-founded and well-argued." The nonintervention is also based on the fact that the High Court "does not generally evaluate the reasonableness of the judgment applied in evaluating the evidence."

In practice, the High Court of Justice has never interfered in a decision not to prosecute due to insufficient evidence. That said, it does not refrain from expressing its opinion about public ethical failings in the conduct of a public figure when evidence of such failings is brought before the court. One can understand Olmert's satisfaction with the bottom line, that he will not be prosecuted in this affair, but it would be inappropriate to ignore the preceding lines in Lador's ruling or the High Court's decision.

Lador found "aberrations" from the norms of appropriate conduct in Olmert's dealings with potential investors and saw a "difficulty" in his private meeting, in his home, with an attorney and family friend who represented a business group, at which Olmert transmitted to her inside information about "the mood in the Finance Ministry," even if this information did not give the group a significant advantage in a deal that was not completed.

Arbel ruled that the picture painted by Lador's decision "does not leave the reader with a comfortable feeling" and is "worrisome," particularly in light of Olmert's private meetings with the lawyer/associate and his failure to report them to treasury officials, which "go beyond poor judgment."

In addition to touching on ethical deficiencies, the High Court ruling also contains more general remarks that could serve as a warning for the future. The intersection of private social ties and public financial interests over which a public figure has authority is not necessarily grounds for criminal prosecution, but it is a recipe for a clear conflict of interest that is unacceptable in the eyes of the public and can, under certain circumstances, lead to an indictment.

The same holds for granting a favor to a friend that has no immediate financial element, when it can be assumed that the public figure believes he will derive benefit in the future "in the form of a job with the acquaintance, contributions or the use of the friend's connections."

Elected officials - cabinet ministers, Knesset members and mayors - should take note as they attempt to block legislation that would make public their declarations of assets and private interests that could conflict with their judgment on public matters.

The duty of cabinet ministers and MKs to submit declarations of assets to the state comptroller and the speaker of the Knesset - a duty that is insufficiently enforced - is a recipe for ethical failings and criminal offenses by dint of being concealed from the public. Ministers see the annual obligation, despite the confidentiality, as a bother.

If the MKs and cabinet ministers were to "bother" the public, every year, by revealing their assets and their personal interests, perhaps it would reduce the kinds of behavior that came to light in the convictions of former ministers Abraham Hirschson and Shlomo Benizri and the various investigations against Olmert. Public transparency has long been known to be the surest recipe for combating governmental corruption.