Is Dershowitz Correct? Fact-checking Netanyahu's Defense

Following the attorney general’s recommendation to indict the prime minister in three cases, Netanyahu responded with a heated, lengthy speech denying and dismissing the charges. But how accurate were his assertions?

Prime Minister Benjamin Netanyahu delivers a speech following Attorney General Avichai Mendelblit's indictment, February 28, 2019.
Olivier Fitoussi

On Thursday evening, Prime Minister Benjamin Netanyahu delivered a speech in response to Attorney General Avichai Mendelblit’s announcement of his intention to file an indictment against him, pending a hearing, in the three cases in which he was under investigation. Haaretz fact-checked some of Netanyahu’s assertions.

For the first time in the country’s history, a hearing process has been started just weeks, just days, before an election. Every citizen understands that this timing is outrageous and that it is intended to oust the right from power and bring the left to power. There is no other explanation for the stubborn insistence on this timing, now, so close to the election.

Haaretz Weekly Episode 17Haaretz

On February 2, 2006, two months before the scheduled election, Menachem Mazuz, the attorney general at the time and now a Supreme Court justice, announced his intention to charge Environmental Protection Minister Tzachi Hanegbi, pending a hearing, in the case concerning political appointments in his ministry. In this case, too, the announcement was made before the hearing was held and before the indictment, still subject to a hearing, was filed.

>>Alan M. Dershowitz in Haaretz: Voters, not the police or the courts, should decide Netanyahu’s future ■ The police investigation into Netanyahu endangers Israel's media and democracy

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In March 2006, three weeks before the election, the Supreme Court rejected a petition from the Movement for Quality Government that called for Hanegbi to be removed from his position as environment minister and criticized the announcement.

“The hearing is due to be held, so we have been informed, three months from now, during which time the processes of the investigation will be completed and a draft indictment formulated,” wrote Supreme Court justice Eliezer Rivlin. “The following two things should perhaps be considered: One, the possibility of hastening the date of the hearing, and two, the broader possibility of, in the future, avoiding the decision to announce the filing an indictment prior to and pending a hearing, and to give preference instead to deciding on an indictment following a hearing. Thus could we avoid an announcement that may often have serious consequences.”

There were also detailed indictments against Neeman, Kahalani and Raful. They were supposed witnesses, there was supposed proof. That means nothing. Because you know how it ended up in their cases? And how it ends up in many other cases? It ends with nothing. Because there was nothing. Just as in my case there is nothing.

All three were cleared of any charges, but none were accused of anything similar to the kind of charges Netanyahu is potentially facing, so it’s unclear what good this argument does. Yaakov Neeman, a former justice and finance minister, was accused of having obstructed justice in the Arye Dery case and to have filed a false affidavit to the Supreme Court, but he was cleared of both charges. Former general and minister Avigdor Kahalani was accused in the Ofer Nimrodi case of obstruction of justice and breach of trust. Former IDF Chief of Staff and minister Rafael Eitan was accused of invasion of privacy. None were accused of bribery.

This witch hunt began with the attempt to pin bribery charges on my wife and me in six cases. This is a house of cards that is collapsing. Already, before the hearing, before I spoke, before I presented all the documentation that refutes all of this, now – five out of these six cases have already collapsed.

It’s not entirely clear what Netanyahu is referring to here – he was not known to be facing six bribery cases at first. Inasmuch as Netanyahu may be referring to the original suspicions in Case 1000 and Case 2000 – the suspicion of bribery was indeed reduced to suspicion of fraud and breach of trust. This decision by the attorney general was opposed by a number of the prosecutors involved, including State Prosecutor Shay Nitzan and Tel Aviv District Attorney (for taxation and economic crimes) Liat Ben-Ari. The decision to publicize the background for the potential charges in these two cases is not indicative of their “collapse,” just the opposite. For as much as Netanyahu refers to Case 3000 – the submarines affair – he was never questioned as a criminal suspect in that case.

And I promise you: The rest of the claims will collapse as well. They will evaporate. Like dust. Nothing will remain of them. They will collapse when I confront the state’s witnesses who testified falsely against me in order to save their skins. Incidentally, they are suspected of things that have nothing at all to do with me. But they were told: “Either you give us something false about Netanyahu, or you go to prison.” They will collapse when I bring dozens of witnesses, dozens of witnesses who for some strange reason were never questioned. They will collapse when I present the documentation and the records that prove that all of my decisions and all of my actions were made totally properly. Not a trace will remain of the claims against me, not in any of the made-up cases, Fake 1000, Fake 2000 and Fake 4000. It’s all just one big blood libel. It’s all false.

Netanyahu implies that the decisions he made were not against the public interest. First off, the charge sheet indicates that this was not the case. But the basic question is not whether the decision was correct or objective, but if it was made as part of a quid pro quo arrangement based on the giving and receiving of a bribe. The law says that even if the decision was correct and not unusual and would have been made regardless of the bribe, the fact of the action being carried out amid a conflict of interest or for some particular benefit makes it a criminal offense.

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FILE Photo: Attorney General Avichai Mendelblit meets with students at Bar-Ilan University, 2018.
Meged Gozani

For example, this is really incredible, there are journalists here, there are spokespeople here. You take the work of any spokesperson, of any politician, and only in my case do they turn it into something criminal. It’s an amazing thing. They take a conversation I had defending my son from some blood libel and they make it criminal. What father wouldn’t defend his son? I’ve got news for you: I talked with other publishers. By the way, they agreed to take down this report. But there are so many examples. We’ll bring up everything in the hearing.

Netanyahu will not be charged, pending a hearing, for asking a journalist to change a report. The argument is that his relations with Yedioth Ahronoth newspaper publisher Arnon (Noni) Mozes or with Bezeq owner Shaul Elovitch were standard journalist-source relations is refuted by the charge sheet. The attorney general says Netanyahu deviated from standard relationships of this kind in two cases.

Netanyahu to be charged with bribery pending hearingHaaretz

In Case 4000, Netanyahu allegedly demanded positive press coverage not in return for providing information to the newsroom, but in return for decisions that would benefit the business interests of Walla owner Elovitch. In Case 2000, Netanyahu allegedly expressed willingness to promote legislation that would serve the financial interests of Yedioth Ahronoth publisher Mozes in return for favorable coverage. This is not the typical give-and-take between a politician and a source, which generally amounts to a quote, or a compliment, in return for a story or exclusive information, in a way that does not include the use of government authority as Netanyahu allegedly proposed to Mozes and allegedly followed through with for Elovitch.

Prof. Alan Dershowitz is one of the greatest jurists in the world. He says that Case 2000 and Case 4000 are a danger to democracy. Also a danger to the balance between freedom of the press and the police, in the relations between a government and the press. He says there is no precedent in history – no precedent in the history of Israeli law, or international law – in which favorable coverage is deemed to be bribery.

On the face of it, it is true that no court has ever ruled in Israel that favorable press coverage amounts to bribery. However, Netanyahu is not the first public figure to be accused of such an offense in order to obtain favorable coverage – Ashkelon Mayor Itamar Shimoni was accused of accepting a bribe from a businessman for purchasing a critical local news website and shutting it down, as well as receiving money. In terms of the language of the law, it doesn’t matter. The law clearly states that a bribe may be “money, monetary value, a service or other benefit.” Supreme Court justice Anat Baron also noted in one of her lectures that favorable media coverage could definitely constitute a bribe.

I want you to understand what they’re talking about when they’re talking about bribery. They’re not talking about money, they’re not talking about envelopes, they’re not talking about cash. They’re talking about two and a half articles on the Walla news site out of an ocean, a vast ocean, of hostile articles against me.

FILE Photo: Shaul Elovitch at the Tel Aviv Magistrate's Court, August, 2018.
Motti Milrod

The argument that this is about just two and a half articles favorable to Netanyahu is a blatant lie – according to the charge sheet, the prime minister and his wife were involved in hundreds of articles over a five-year period. Netanyahu allegedly instituted a tight system of pressure and control regarding the Walla news site, which cooperated with him and repeatedly slanted its coverage in his favor.

This involved both favorable coverage of Netanyahu and unfavorable coverage of his rivals. The attorney general writes in the charge sheet that “the irregularity of the relationship [between Elovitch and Netanyahu] was manifested in a very large quantity of intensive demands over a number of years, often frequent demands, that were sometimes relayed at unusual hours, for coverage or the prevention of coverage of a certain kind.

Another irregularity in the relationship was manifested in the demand for crude intervention by the controlling shareholder, Mr. Elovitch, in specific journalistic content of the site in accordance with the wishes of the Netanyahus. In fact, many times, in wake of these requests, Mr. Elovtich intervened in the coverage given to Mr. Netanyahu, his family or his rivals, and many times his intervention led to a change in the coverage as requested. The frequency and level of the demands increased around the time of the elections that were held in January 2013 and March 2015 and around the reports concerning the various affairs concerning Mr. Netanyahu and his family, including the case of Meni Naftali, the case of the prime minister’s residence… Affairs that were revealed in the state comptroller’s reports concerning Mr. Netanyahu and in dozens of other instances in which the Netanyahus asked the Elovitches to keep a negative critical report off the site, or to have such an item removed from the site if it had already appeared.”

It’s absurd to maintain that I controlled Walla. Walla was and remains a far-left site that is extremely hostile to me. You know, there’s this thing called Google. I invite Israelis to check for themselves. It’s work, there are a lot of articles, and a lot of hostile articles, but take a look, see for yourself. Who is the first person in history accused of bribery for favorable press coverage? Me. Benjamin Netanyahu. The most castigated person in the history of the Israeli media. I wonder why all the other politicians who received favorable coverage from Noni Mozes in return for promoting the Israel Hayom law aren’t being investigated. A law that would have brought millions to Yedioth Ahronoth and to Noni Mozes.

Even after coverage was changed at the behest of Netanyahu and his wife, he had many complaints. In August 2015, weeks after he completed the Bezeq-Yes deal on Elovitch’s behalf, Netanyahu sent to Elovitch via Shlomo Filber, then the director general of the Communications Ministry, a document analyzing 90 opinion pieces about the prime minister that were published on Walla between late December 2014 and the summer of 2015. The analysis found that more than 60 percent of the articles were hostile to Netanyahu, 20 percent were neutral and only a few were sympathetic. Elovitch got the message and afterwards the change on the opinion page was noticeable.

As for the charge that other Knesset members were not investigated, including then-Justice Minister Tzipi Livni and the MKs who sponsored the bill, Mendelblit noted in his decision that “this claim was thoroughly examined.” No evidence was found to establish a reasonable suspicion against any of the MKs, with the exception of Eitan Cabel of Labor. “It should be stressed that the evidentiary situation in this matter was completely different regarding the discussion between Netanyahu and Mozes – about which the law enforcement authorities were presented with recordings and other evidence that was collected later, which raised a reasonable suspicion that criminal offenses were committed,” says the document.

And what about Fake 1000? Just as absurd. They spent hundreds of millions of taxpayer money on the investigation and what did they find? Cigars, packaged meals, rubbish. They’re inflating the sums, it’s just unbelievable, they’re inflating them hugely. They’re taking all the cigars that Milchan bought for himself and his friends, some of them are very good friends of mine, and putting it all on me. Funny when you look at other cases of gifts, such as the valuable pens that Prime Minister [Ehud] Olmert received from contractors, and businessmen, worth more than a million shekels, and the attorney general at the time [Mazuz] said there was no point in even investigating it.

First of all, the investigations concerning Netanyahu were not about packaged meals. As for the cigars, the numbers that appear in the charge sheet are quite substantial: Each box, containing 10-25 cigars, cost 2,000-3,000 shekels. In 2012, Netanyahu allegedly received gifts worth 55,000 shekels, and a total of 267,000 shekels’ worth of gifts over five years from Israeli-American billionaire Arnon Milchan. Plus another 145,000 shekels of gifts from Australian billionaire James Packer from 2014 through 2016, and that’s not even counting the champagne.

As for Olmert’s pens, a review done in 2006 following a complaint filed by journalist Yoav Yitzhak found that Olmert received one pen worth hundreds of shekels as a birthday gift from businessman Alexander Tessler. Olmert scheduled a meeting with Tessler and Israel Lands Authority officials to discuss a land request by Tessler, but Olmert informed the ILA’s district administrator of their acquaintance and witnesses testified that no pressure was put on them to act in Tessler’s behalf. Then-Attorney General Mazuz did say that Olmert nevertheless acted improperly and should not have attended that meeting.

FILE Photo: State Prosecutor Shai Nitzan at a Justice Ministry conference, November, 2018.
Motti Milrod

According to the media – I get my information from the same leaks as you do – the two prosecutors who pushed to take an extreme line against me are State Prosecutor Shai Nitzan and prosecutor Liat Ben-Ari.

First, there is no need to get information from leaks, everything is clearly stated in the charge sheet. According to this document, State Prosecutor Shai Nitzan and Tel Aviv District Attorney Liat Ben-Ari supported an indictment for bribery in all three cases. Second, they were far from the only ones. Aside from Nitzan and Ben-Ari, Deputy Attorney General Amit Marari, Deputy Attorney General Shlomo Lemberger, Deputy Attorney General Nurit Litman and director of the criminal division in the State Prosecutor’s Office Joey Asch, also supported a bribery charge in Case 2000.

Maybe you can explain to me how Liat Ben-Ari, who pushed for the attorney general’s announcement to be made now, before the election, halted the investigations against Tzipi Livni in 2013 on the grounds that it would be interfering in the election?

Livni was not a suspect in the case in question, which concerned the treasurer of her Kadima party, accountant Yitzhak Hadad. His trial is currently in progress. The police did decide not to pursue investigative activity close to the time of the election, but Liat Ben-Ari had no involvement in this. In any case, all this has nothing to do with the Netanyahu cases, in which the investigations concluded long before the election date was moved up, and the decision about an indictment was made on the professional level of the legal staff in the Justice Ministry, without any new investigative actions taken by the police.

Is it just coincidence that the court ruled that State Prosecutor Shay Nitzan, and I quote, “discriminated against right-wing persons and scandalously exercised arbitrary enforcement against them?” I hope it is just coincidence. I hope that it is not the case now.

The above statement was made by the Kfar Sava Magistrate’s Court and struck and overruled by the district court on appeal. It was written a ruling concerning a man accused of threatening to murder the state prosecutor. The three district court judges who heard the appeal ruled: “There were no grounds for this statement regarding arbitrary enforcement and we therefore instruct that it be stricken, and this is with the consent of the parties.”