Analysis

By Clinging to His Seat, Netanyahu May Be Securing a Plea Bargain

Yet as cases against the prime minister get stronger, it is unlikely the attorney general will be able to forgo a prison sentence

Prime Minister Benjamin Netanyahu speaks at a during a corner stone ceremony for a new neighborhood in the Beitar Illit settlement in the West Bank, August 3, 2017.
MENAHEM KAHANA/AFP

In the game of political survival, the letter of the law leans toward Benjamin Netanyahu. Ayelet Shaked described the situation well when she said last week that the law does not require him to resign even if he is charged. The timing of her remark was suspicious. Why did the justice minister have to address the topic, particularly when a state’s witness deal with Ari Harow was being planned just a few steps from her office?

The Basic Law on the Government says a sitting prime minister can only be ousted if convicted of a crime of moral turpitude, after a Knesset special majority vote. 

The High Court of Justice ruled that the prime minister must dismiss a cabinet minister who has been indicted. But that was a broad interpretation of the law, after Arye Dery’s indictment for bribery. The ruling was considered activist because the law says the prime minister “may” oust a minister. Justice Aharon Barak ruled that it would be unreasonable not to dismiss a minister who was charged with a crime; that is, that “may” in such a situation meant “must.”

The law is intentionally much less flexible when a prime minister is involved, since removing a prime minister necessarily means replacing a democratically elected government — no small thing.

There is no doubt that a decision to indict Netanyahu would immediately lead to a number of petitions to the High Court of Justice demanding that he resign or suspend himself. They may have already been written. Do they stand a chance? Justice Esther Hayut, who will become chief justice in October, and her designated deputy Justice Hanan Melcer, both show signs of judicial activism. But it’s too early to say whether they would issue a ruling requiring very creative judicial interpretation and that would mean a change of government. 

It’s very disappointing that it was the justice minister who saw fit to point out that the law does not require Netanyahu to resign. One might have expected Shaked to speak about principles and the appropriate conduct of a senior elected official who is suspected of criminal acts. Meanwhile, the only statement of principles the heads of the governing coalition have made is silence. Netanyahu’s coalition partners — Naftali Bennett, Moshe Kahlon, Avigdor Lieberman, Shaked and the ultra-Orthodox parties — are making a mockery of themselves, mired alongside him in the mud of corruption. 

There is one precedent by which Netanyahu’s political conduct can be measured with regard to the investigation against him and the behavior of his coalition partners: the one set by former Prime Minister Ehud Olmert. By that measure, Netanyahu should have resigned long ago, but no one in his coalition is urging him to do so, as Ehud Barak urged Olmert at the time. 

The suspicions against Netanyahu are much more serious than the ones that led to Olmert’s resignation. The main case that led Olmert to step down, in September 2008, was the “cash envelopes” affair, in which he was charged, and eventually convicted, of fraud and breach of trust. The Holyland affair, in which he was convicted of the more serious offense of bribery, came to a head much later. Netanyahu is suspected of numerous ethical offenses, the most serious of which is bribery. The first time he was questioned as a potential suspect was in January. 

Olmert announced his resignation less than six months after he officially became a suspect. Considering that the suspicions against Netanyahu are much more serious than those against Olmert at the time, the prime minister sets a precedent every day he remains in office. Seven months have passed since he was first questioned as a potential suspect.

We should also remember that Attorney General Avichai Mendelblit set a high bar for launching a criminal investigation against an incumbent prime minister. In other words, from the outset the case against Netanyahu was more solid than was the case against Olmert that led to his resignation.

From the moment the Netanyahu case added a state’s witness — and Harow  is a “higher-value” witness than his equivalent in Olmert’s case, Moshe Talansky, since Harow was closer to Netanyahu than Talansky was to Olmert — the countdown to the announcement of a pre-indictment hearing began.

Netanyahu’s holding on to his position serves a potential plea bargain. The goal would be one resembling what then-Attorney General Mehachem Mazuz offered to Moshe Katsav, in which the state agreed to forgo the charge of rape and a concomitant prison term in exchange for the former president’s confession to a lesser charge. The deal with Katsav was barely approved by the High Court of Justice, in a 3–2 ruling, before Katsav changed his mind. 

But the stronger the cases grow against Netanyahu and the more serious the suspicions, the less likely it is that Mendelblit will be able to forgo a prison sentence for him, even if a plea bargain is reached.