Analysis

Secret Tape Case: From Resignation to Elections, What Are Netanyahu's Options?

Netanyahu can continue to serve until he is convicted of a crime of moral turpitude, but his partners might turn on him before.

Prime Minister Benjamin Netanyahu.
REUTERS

The police investigation of Benjamin Netanyahu has sparked speculation over what circumstances would lead to the resignation of the prime minister — or other possible scenarios, include dissolution of the Knesset and new elections. But most of these scenarios could only come about through Netanyahu’s own initiative.

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Officially, a prime minister can remain in office even after being indicted. The Basic Law on the Government requires the prime minister to resign only if he has been convicted by a final verdict of a crime that the court defines as one that carries “moral turpitude.”

The Knesset has the authority to declare the prime minister “temporarily incapacitated” from holding office only once he has been convicted of such a crime, but before the appeal of his conviction has been heard and decided upon in higher courts.

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The law describes the appropriate procedure for declaring a prime minister temporarily incapacitated: The Knesset House Committee must meet within 30 days of the date of conviction of the prime minister and hold a hearing in which the prime minister is given the chance to convince Knesset members not to declare him incapacitated as long as he is appealing his conviction and fighting to clear himself.

If the House Committee does not meet on the matter, the Knesset Speaker is required to bring the issue before the full Knesset, which must make a decision. Either way, the full Knesset must approve the decision of the House Committee.

Prime Minister Benjamin Netanyahu arrives to the weekly cabinet meeting in Jerusalem, Sunday, Dec. 18, 2016.
Amir Cohen, AP

The prime minister is always entitled to declare, for a number of reasons, that he is temporarily unable to carry out his duties. In such a case, the acting prime minister will take his place temporarily. If no acting prime minister has been appointed, as is the situation today, then another minister will be appointed by the cabinet to fill the office.

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If the period of temporary incapacity reaches 100 consecutive days, then the prime minister is declared to be permanently unable to carry out his duties, and the government is dissolved.

While a declaration of permanent incapacity to serve as prime minister automatically means the resignation of the government, it does not automatically require new elections. The president is allowed to offer the task of forming a new government to another Knesset member.

Netanyahu has another option: to try to call an early election in order to let the public decide on whether he will continue in office. Calling early elections would also allow Netanyahu to promote legislation banning the investigation or trial of a sitting prime minister, a law which would only take effect after the next election, but would apply to him if he once again won that election and was reelected prime minister.

Reuters

Although by law ministers and prime ministers in Israel are not required to resign if they are indicted, the High Court of Justice approved a petition submitted by the Movement for Quality Government against Interior Minister Arye Dery and deputy minister Rafael Pinhasi at the time they were in the center of criminal investigation. The court ruled that the two should resign if they were indicted. This rule is expected to apply to Netanyahu as well if it is decided to indict him. Sources in the Knesset this week said the coalition partners, including those who are Netanyahu’s rivals in the party, will not wait until an indictment is served and will try to form an alternative coalition – without him – based on the current coalition members, if it turns out that the suspicions against Netanyahu are well founded and his political status becomes untenable. Another representative of Likud would head such a government, or the chairperson of another major faction in the current Knesset.

Leaders under investigation

The options available to Netanyahu if his investigation moves forward can be gleaned from the conduct of former Prime Minister Ehud Olmert. Olmert continued to hold office for the entire time he was under criminal investigation. For more than two years, beginning in January 2007, Olmert was questioned about six different affairs, but was not declared unfit to hold office. He eventually resigned only after the police decided to officially file a damning indictment against him on bribery charges. His resignation led to an election campaign only at the end of which, a few months later, he actually left office and devoted himself fully to his legal defense.

Reuters / File photo

Olmert submitted his letter of resignation as prime minister 15 days after the police published its recommendation to indict him for bribery in the cash envelopes and Rishon Tours affairs. He remained head of a transitional government for four more months until the end of the election campaign to replace him.

Olmert declared his intention to end his term of office if he is indicted in a speech as early as the end of July, and as early as May told others in closed conversations that were leaked to the media that he believed he would do.

As the media reported on the solid nature of the evidence against him, Olmert lost control of the coalition in his last months in office after Labor Party ministers made it possible for important bills to pass despite the government’s opposition.

Former President Moshe Katsav was not prime minister, and the laws governing that office are somewhat different in his case. Nonetheless, his conduct during the investigation against him attests to the difficulties Netanyahu could face in the coming months even if he is not indicted: During the period of the investigation against him, Katsav wanted to call for a temporary 16-hour hiatus, to avoid public embarrassment, and he thus excused himself from the swearing-in ceremony of then-Supreme Court President Dorit Beinisch. A month later Katsav chose not to appear at the opening of the Knesset’s winter session for fear he would be humiliated by MKs. Katsav took a temporary leave of absence, which became permanent only when the draft indictment against him was released a few months later.