Olmert's black September
Next month the state prosecutor will decide whether to indict Prime Minister Ehud Olmert in the case of the tender for Bank Leumi's privatization. The attorney general may open investigations against Olmert in two other cases, and there is the affair of the Cremieux Street apartment and the Winograd Report...
Among the participants in cabinet meetings held in recent weeks are two people who are mutually transparent. The other people in the room see them, but they are not visible to each other. The two are the attorney general, Menachem Mazuz, and the vice premier, Haim Ramon, who was justice minister until Mazuz filed an indictment against him, which led to his conviction. Prime Minister Ehud Olmert brought Ramon back into the government and imposed his membership in the cabinet on Mazuz. The accuser and the accused, condemned to spend Sunday mornings together, have chosen a course of such absolute disregard that when they encounter each other they seem to be confronted with air rather than flesh and blood.
If the meetings between Ramon and Mazuz are embarrassing, the feeling of discomfort is likely to grow, and this time it will be shared by the prime minister. This is because within about a month, "Olmert's cases" will reach the stage where decisions are to be made by the state prosecutor and by Mazuz.
The case that has advanced furthest on the criminal track involves the tender for the privatization of Bank Leumi. The question of whether to indict Olmert in this affair was placed in the hands of the state prosecutor, Eran Shendar, because of the involvement of the legal adviser to the Finance Ministry - Yemima Mazuz, the "sister of."
The suspicion against Olmert is that in 2005, while serving as finance minister, he allegedly intervened in the tender in order to tilt it in favor of a group of tycoons from Australia (headed by Frank Lowy) and America (headed by Mortimer Zuckerman). The loss the state was liable to suffer, the witnesses testifying against Olmert say, is estimated at $250 million and more. The case rests on strong witnesses and illuminating material, which was made available to the police or seized by them. The complaint filed by the Finance Ministry's accountant general, Yaron Zelekha, which was found to be completely reliable, is supported by additional witnesses and additional evidence.
The inventory of the Olmert cases also includes the Investments Center case and the affair of the appointments in the Small Business Authority. Both cases are just a word-by-Mazuz away from becoming criminal investigations. The fourth case, which concerns an apartment Olmert bought on Cremieux Street in the upscale German Colony neighborhood of Jerusalem, is wobbling. On top of all this, there is the final report of the Winograd Committee, which is investigating the handling of the Second Lebanon War - and the first chapter of which already branded Olmert with the mark of "failed" - and the growing collection of reports issued by the State Comptroller's Office.
The gathering of evidence in the Bank Leumi case was completed last week in the United States, when Mort Zuckerman was deposed; that did not improve Olmert's situation. The testimonies from abroad are being presented to the court without the need to bring the witnesses to Israel. Because of their importance, and due to the risk they pose to witnesses who are liable to incriminate themselves, the investigators and prosecutors from Israel are encountering bureaucratic and human obstacles; this is the reason, for example, that the Cyril Kern affair (relating to campaign funding for Ariel Sharon) has dragged on for years. The same holds true for other investigations as well, some involving the minister for strategic affairs, Avigdor Lieberman. The cases remain open, and the suspects, in no hurry to help, complain bitterly about the perversion of justice.
In the past year, in an effort to abridge the obstacle course, the police have changed their approach to taking depositions: They arrive at understandings with the witnesses' attorneys in return for speeding up the procedures. In other cases, Israeli representatives need good connections with the local justice ministry in order to jump to the head of the line. In discussions held within the Israel Police, the head of the Investigations and Intelligence Department, Yohanan Danino, credited the successes to the commander of the National Fraud Unit, Shlomi Ayalon, who was the police's representative in Germany.
In recent weeks, investigators of the National Serious and International Crimes Unit succeeded in taking testimony in Holland regarding a case centering around businessman Arcadi Gaydamak. Here is an example of police efficiency, which can delight Olmert and Lieberman alike. According to polls made available to the leaders of the Kadima party, a list led by Gaydamak might win a dozen Knesset seats if the elections are moved up. They will back Benjamin Netanyahu and reduce Lieberman's strength.
The only testimony missing in the Bank Leumi case is Olmert's. After it is taken, within a few weeks, State Prosecutor Shendar will convene the team of prosecutors and police officers that dealt with the case, and a decision will be made either to indict or to close; only then will Shendar retire (as he has announced). Betting that the Leumi case will be closed is riskier now than buying an apartment from the Heftsiba company, which is in danger of collapse. The cross-referenced testimonies against Olmert, supported by documents and other exhibits, placed a heavy burden on him. Law enforcement agencies believe they can prove the facts; Olmert's challenge will be to cast them in a different light, as an interpretation that is convincing in its forgivingness. If he fails in this, a draft indictment will be drawn up against him and he will have the right to a hearing.
In the middle of September, Mazuz is supposed to decide whether to instruct the police to open an investigation or to close the case against Olmert, his aides and others in the Investments Center and Small Business Authority affairs, both of them concerning units in the Industry and Trade Ministry. The common denominator of the two is the suspicion of conflict of interests to the point of breach of trust.
The more serious of the two cases is Olmert's intervention in the Investments Center, when he was industry and trade minister in the Sharon government, on behalf of an entrepreneur represented by Olmert's friend, lawyer and former partner, attorney Uri Messer. Olmert intervened contrary to the position taken by the experts in the ministry and in disregard of an explicit warning issued by the former attorney general, Elyakim Rubinstein, in a similar and earlier affair involving an investment in Ashkelon's Coca-Cola plant. At the early stages of the investigation, Mazuz will have to find a solution for the status of the deputy attorney general, Davida Lahman-Messer, Messer's wife, even though the discussions held by Mazuz and Shendar are compartmentalized and the problem is one of visibility more than of substance.
At the center of the second affair is the suspicion that political appointments were made in the Small Business Authority. In terms of scale, this case is considered less grave than the ongoing one concerning appointments made by Tzachi Hanegbi as minister of the environment. Possibly, if this case stood alone, Mazuz would close it with a reprimand to Olmert. But when added to the Investments Center case, it reflects, in the view of both the state prosecution and the state comptroller, a pattern of behavior by a minister who does not just set policy, but also prevails over officials and tries, prima facie, to benefit those he holds dear by illicit means.
Another case - relating to the reduction Olmert received when buying the apartment on Cremieux Street - which is being handled by the state prosecution's department for enforcing property laws - contains two main elements. One is the generous discount Olmert received from the contractor who sold him the apartment; the second concerns what went on in the Jerusalem Municipality when officials there learned that the purchaser of the property, which is earmarked for preservation, is their former, beloved mayor.
The size of the discount Olmert received is in dispute. An assessor estimated it at more than $300,000. Olmert objected to this estimate and said it was erroneously calculated, based on the high price of the market in one particular month. The estimate, he says, should be made based on a different month, when prices were lower. With respect to the officials, who moved with unusual speed to deal with necessary authorizations, it is clear to the prosecution that this was a case of "protektzia" (favoritism), but this is not enough to declare that its circumstances were criminal, at Olmert's request or in return for a benefit he received, if any.
The Winograd Committee, whose letter of appointment was drawn up jointly by Mazuz, former cabinet secretary Yisrael Maimon and Olmert's chief of staff, Yoram Turbowicz, appears to be working on a separate plane. Actually, the investigations are contiguous, and not only because some of those involved, including Israel Defense Forces officers, have petitioned the High Court of Justice against the committee and thus forced Mazuz to address its work.
On Tuesday, the media focused on the visit of two former presidents of the Supreme Court, Meir Shamgar and Aharon Barak, to the home of Justice Minister Daniel Friedmann. Hundreds of meters away, a different meeting of presidents, clandestine in nature, was taking place: State Comptroller Micha Lindenstrauss, formerly president of the Haifa District Court, was conversing with Eliyahu Winograd, a former president of the Tel Aviv District Court. Lindenstrauss was accompanied by his director general, Shlomo Gur, and the head of the unit that reviews the defense establishment, Major General (res.) Yaacov (Mendy) Orr. The Winograd Committee was present almost in full force; only Prof. Yehezkel Dror was absent. The main topic of discussion was the division of labor between the comptroller and the committee. The State Comptroller's Office will soon issue three reports: on the information effort in the Second Lebanon War, on the IDF's logistical preparedness, and on the fitness of the reserve units. The drafts of the reports will probably be sent to those who are mentioned in them before the still-unknown publication of the final report by the committee.
If the Winograd panel finds a way out of the tangle and comes up with personal recommendations, extending to dismissals, it may run into the Waldman precedent. Moshe Waldman, a former senior police officer, was recommended for dismissal by the commission headed by Supreme Court Justice Theodor Or that investigated the police handling of the disturbances in the Arab sector in 2000. The government adopted the recommendations, but Waldman's lawyers petitioned the High Court armed with an original argument: The Commissions of Inquiry Law was not amended in the wake of the passage of the Basic Law on Freedom of Occupation, contrary to an explicit condition, and therefore recommendations of dismissal are invalid, unlike transfer to a different position or delay of promotion. The State Prosecutor's Office, apprehensive of what the High Court would decide, concluded a secret deal: Waldman withdrew his petition and in return was allowed to remain in his post for another six months, then take leave at police expense, and only then, distanced from the Or Commission report, terminate his service.
The premiership is, as everyone knows, Olmert's "place of work," and his desire to thwart his dismissal is no less urgent than Waldman's was. If he asks Mazuz, he will be told that until now recommendations by commissions of inquiry were sufficient to force a prime minister to fire a minister, but the dismissal of a recalcitrant prime minister lies solely in the hands of the Knesset, in a vote of no confidence. At this stage, therefore, the discussion will take place at the public and political, not the judicial, level. The same holds true for the criminal cases, because the law stipulates that a prime minister, in contrast to a regular cabinet minister, must resign only three months after being convicted of an offense of moral turpitude by the Jerusalem District Court. The process is complex, protracted, and far from immediate.
Case of incapacity
Olmert is not the only one with cases. Mazuz, too, is lugging a big case: not his or that of former president Moshe Katsav, the handling of which held up Mazuz's progress with Olmert's cases. After Hanegbi, Ramon and former finance minister Avraham Hirchson, Mazuz is exempt from proving his attitude toward the state's "B team" - the members of the government. His record is more problematic with regard to the "A team." He closed the "Greek island" case of former prime minister Ariel Sharon, and with Katsav he reached an arrangement that was shot full of holes by the High Court justices in words, though not yet in a ruling. Mazuz, despite his tenacious belief that he acted correctly, has seemingly accepted the possibility that the High Court will unravel the threads of the Katsav plea bargain - in which case he will say that it's not so terrible, because one in five judges' decisions is overturned in a higher court.
Mazuz, then, will not view the annulment of the Katsav arrangement as a reason for him to resign, but will also not be able to reach a decision in the Olmert cases and emerge unscathed, publicly and legally, with the label of "Meni the fixer" - an attorney general who is excessively lenient in cases of presidents and prime ministers. The conclusion would seem to be that Mazuz will find it difficult not to indict Olmert. The obvious question is what will happen if Olmert buttresses himself behind the language of the law and refuses to resign. One alternative is a declaration of incapacity, as with Katsav when he was being investigated, and as with Sharon for medical reasons.
The advantage of incapacity lies in its reversibility: Unlike resignation, it is possible to return from it without jolting the whole system unduly. As far as is known, Mazuz is not an enthusiast of incapacity, even for medical reasons. He also objects to transferring the authority to declare it to the level of experts, like physicians. In his opinion, the removal of a prime minister from office, even temporarily, is a political act that should devolve on a group of cabinet ministers after they have considered a professional opinion (learning from the failure in the medical matter concerning Sharon, Mazuz is working to create a defined and permanent post of "prime minister's physician," who will be responsible for treating him). Mazuz will not initiate a declaration of incapacity, but the High Court of Justice, in response to petitions against Olmert's continuation in office, may do so. Public pressure can generate a development that will, at the least, force incapacity on Olmert and the transfer of the premiership to the minister designated as acting prime minister, Tzipi Livni, in the hope that the criminal proceedings against him will be concluded quickly. In that case, he will also have an inducement to accelerate them, so they will conclude within months and not years.