Analysis

Netanyahu Is Facing Less Severe Charges - and That Could Help His Defense

Attorney General Avichai Mendelblit's preference for breach of trust charges over bribery in two cases is a blow against the rule of law and the fight against government corruption

Yedioth Ahronoth publisher Arnon Mozes after being questioned in one of the Benjamin Netanyahu corruption cases, 2017.
David Bachar

Breach of trust, attributed to Prime Minister Benjamin Netanyahu in Case 1000 (the lavish gifts affair) and Case 2000 (the Arnon Mozes favorable-coverage affair), is a serious offense that carries a maximum prison term of three years. But bribery is more serious; the maximum is seven years.

Unlike State Prosecutor Shai Nitzan and the chief prosecutor in the Netanyahu cases, Liat Ben Ari, Attorney General Avichai Mendelblit decided not to suspect Netanyahu of bribery regarding gifts he received from Hollywood producer Arnon Milchan, or regarding his negotiations with Mozes, the publisher and managing editor of the daily Yedioth Ahronoth.

>> Read more: Netanyahu to be charged with bribery pending hearingNetanyahu indictment: What are the charges and what happens next | Explained

But it’s not clear why Mendelblit sufficed with the lesser offense of breach of trust.

In the Case 1000, because Mendelblit opted for breach of trust, the statute of limitations applies. If we examine the facts as Mendelblit presents them, the following picture emerges: Although the relationship between Milchan and Netanyahu started as far back as 1999, the gifts started coming only after the latter returned as a public figure in early 2003 or so. In late 2002, Netanyahu returned to the government as foreign minister; in 2003 he would become finance minister.

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The only element that needs to be proved to turn the receipt of gifts into the taking of bribes is Netanyahu’s awareness that the gifts were given with the expectation that the giver would get something in return.

Contrary to Netanyahu’s description – that the gifts were the kind a public servant is allowed to receive – the draft indictment shows that these weren’t gifts at all. Gifts aren’t given when the recipient demands them, and if a public servant receives friendly gifts, the value doesn’t reach 90,000 shekels ($24,830) annually.

Clearly the prime minister was well aware of the ban against accepting gifts, so he tried to conceal the phenomenon. And he didn’t declare a conflict of interests to the state comptroller when he was asked about it. According to the attorney general, these actions show breach of trust.

In one case, Milchan came to the prime minister’s residence and told Netanyahu that he had brought cigars and champagne (valued at 4,500 shekels). He then asked Netanyahu to call U.S. Secretary of State John Kerry about extending his U.S. visa.

How can you say that it can’t be proved that the gifts were for an act linked to Netanyahu’s official role? Not only is there a chance for a bribery conviction, it’s hard to see how such a conviction can be avoided.

We have already heard about imaginary difficulties in proving that a bribe was accepted when nothing was given in exchange (imaginary because such proof isn’t required by law).

The draft indictment contains a new claim: Even the fact that a few things were given in exchange isn’t relevant to proving a bribe.

Either way, beginning in 2009, the prime minister promoted Milchan’s interests in a long list of instances. These include the promotion of a law that would benefit Milchan as a stockholder in Channel 10, and assistance in promoting a project involving the Indian businessman Ratan Tata (because the accusation shrank to breach of trust, these actions exceed the time period in question). There was also a request from the U.S. government, including the secretary of state, to extend Milchan’s visa.

The list also includes the promotion of regulations at Milchan’s request that would extend the tax exemption on assets and income abroad for Israeli citizens returning from abroad (an effort halted by then-Finance Minister Yair Lapid). There was also the promotion of regulatory action that would have let the broadcasting corporations Reshet and Keshet merge so that it would be worthwhile for Milchan to buy their stock.

Netanyahu not only acted robustly for Milchan, he asked others do so, putting the state’s assets at Milchan’s disposal.

That happened, for example, when Milchan and Tata asked him to establish a car factory in the Jordan Valley as a joint venture between Israel, Jordan and the Palestinian Authority. Netanyahu immediately asked the coordinator for government activities in the territories to examine the plan. Regarding the merger of Reshet and Keshet, he summoned the director general of the Communications Ministry, his appointee Shlomo Filber, late one night and told him to help Milchan.

In the Netanyahu-Mozes affair, Mendelblit gave no reason for deciding that the actions didn’t reach the criminal level of a bribe, contrary to what most of his advisers believed. The law states clearly that the person who requests a bribe or makes it a condition, even if he doesn’t receive it, is like someone who takes a bribe. Mendelblit used these exact terms in determining that Netanyahu neither asked for a bribe nor made it a condition.

But this decision contradicts what’s stated later in the draft indictment. After Mozes offered Netanyahu a bribe – suggesting he would change his newspaper’s coverage to suit Netanyahu – Netanyahu continued to discuss details of the “improved” coverage and legislation that would benefit Mozes. Netanyahu presented himself as supporting such legislation; he would look into whether it could be passed during an election campaign.

Even if we ignore that Netanyahu initiated all the meetings, this deal clearly sought to make the paper subservient to Netanyahu’s needs and conditioned legislation on it.

The attorney general states that Netanyahu didn’t intend to pass a law that would hobble Yedioth Ahronoth’s rival Israel Hayom before the election, but rather misled Yedioth’s publisher Mozes into thinking he would. It’s unclear what basis Mendelblit has for this, unless it’s Netanyahu’s own statement, whose veracity is suspect.

Netanyahu’s conversations that reflected a vital interest to him – slanting coverage in Yedioth Ahronoth and its Ynet website during the election campaign – took place in secret and didn’t appear in the participants’ schedules. The claim that these were simply regular meetings between a politician and editor falls apart because of the extreme secrecy and the conversations’ content.

The “discount” that Mendelblit gave Netanyahu in not charging him with bribery, without any real reason, is very disturbing – especially because of the nature of the bribery, one of the worst in the state’s history.

Not only was it positive coverage for Netanyahu, it was negative coverage of his political rivals, like Moshe Kahlon and Naftali Bennett, in exchange for the use of his power to enact legislation beneficial to Mozes. These actions subvert the legislature as well as the public discourse, which are the life’s blood of democracy, placing them in the ruler’s thrall.

No less worrisome is the attorney general’s foot-dragging after he heard the tapes. Then there’s the incomprehensible difficulty he had in realizing their criminal significance, which shouts to high heaven.

In the profit and loss statement regarding Mendelblit’s decision, the profits can’t be ignored. The attorney general won praise from those who paint reality gray when it’s really black. He rescued himself here from a direct attack by Netanyahu and his minions. By forgoing a bribery charge in these two cases, he ostensibly proved to the right wing that he had not completely surrendered to the left.

But these are dubious profits. They might be interpreted in Netanyahu’s camp as a sign of weakness and an invitation to ratchet up the pressure.

Also, the attorney general’s decision caused clear damage. The reduction of the Netanyahu-Milchan affair to mere breach of trust keeps the prime minister from having to account for his actions in this instance. If an indictment is served in the Netanyahu-Mozes affair, the court won’t have the whole terrible picture of the prime minister’s criminal efforts to make Israel’s media his mouthpiece and promote the pettiest and ugliest of interests.

Mendelblit’s position has created openings for the defense; they will be raised in the hearing that Netanyahu will receive, and if an indictment is served, the charges could be watered down.

These openings could also severely compromise the rule of law, equality before the law and the fight against government corruption. Potential perpetrators of bribery and their lawyers will take pleasure in the attorney general’s ability to find doubts where there are none.

In rejecting their recommendations, Mendelblit has compromised the police and the state prosecutor, who saw things correctly. He left them easy prey for the prime minister and his people, only because they did their duty faithfully, better than the attorney general.

In providing ammunition to enemies of the rule of law, in attacking its key defenders, the attorney general has unwittingly assisted in a dangerous assault on the rule of law. Unfortunately, he didn’t help protect the rule of law; he struck a blow against it.