Analysis

Netanyahu Investigation: Why 'Friendship' as a Line of Defense Will Not Be Enough

As police investigate the prime minister over alleged gifts, explanations of 'friendly relationships' will not save him.

Attorney General Avichai Mendelblit, right, with Prime Minister Benjamin Netanyahu.
Marc Israel Sellem

Senior Justice Ministry officials, and even those who have reservations about certain opinions of Attorney General Avichai Mendelblit, say he is not someone who is afraid of hard work and difficult problems. The detailed announcement Mendelblit released just before midnight on Monday night is more proof of this.

Mendelblit has been working overtime for the past few months, and it turns out that a large share of these hours were devoted to his role as the overseer of the team investigating the suspicions against Prime Minister Benjamin Netanyahu.

Mendelblit said in his announcement that he has held dozens of meetings over the past few months with the heads of the investigative team and State Prosecutor Shai Nitzan in order to evaluate whether the findings of the preliminary inquiry conducted on Netanyahu justify upgrading to a full criminal investigation and questioning Netanyahu “under caution,” meaning as a suspect in the commission of a crime.

In his announcement, Mendelblit listed four affairs in which he decided not to open an official criminal investigation against Netanyahu because of a “lack of a sufficient evidentiary foundation.”

It is worth reading the exact wording very carefully. Even those cases were not closed, instead Mendelblit wrote: “No grounds exist to continue the examination on these matters at this time.” The emphasis is on the words “at this time.” In other words, the books are still open. It is possible that publicizing the affairs in which he did not find sufficient evidence may actually lead to further information being received on those matters.

The affairs that he decided to continue, as well as those that are still being investigated, remind one of the cases against former prime minister Ehud Olmert. For example, the claims of receiving funds from businesspeople has similarities to the affair in which Olmert received envelopes stuffed with cash from businessman Morris Talansky. For the suspicions of double funding for overseas trips, see the entry on Rishon Tours.

There is no Israeli prime minister in recent decades whose climb to the top has not set off a wave of inquiries or police investigations. The minute the election results are announced is usually the same minute that the countdown begins to the potential indictment of the candidate chosen to be prime minister. Netanyahu was no exception, so the claims of political persecution, or persecution by the legal authorities, are baseless.

AG bent over backwards for Netanyahu

In fact, the opposite is true. Mendelblit was extremely careful to open an investigation only when senior prosecutors and the heads of the police’s investigations branch felt enough evidence had accumulated on which to base such a criminal investigation. All the other actions of the police, which included taking testimony from dozens of witnesses in Israel and abroad, were conducted under the convenient title of “an examination.”

The “examination” the police conducted into the various accusations against Netanyahu surpasses many other “investigations” in its scope. As Mendelblit himself wrote in the announcement, the police “examined extensively and searched in depth.” A true work of examination.

A petition is being heard now in the High Court of Justice asking the court to determine whether an “examination” is a unique proceeding that is only used for the benefit of public figures.

An “examination” has many advantages. A person’s situation is different when a criminal investigation is hanging over them, as opposed to a vague examination. Now it turns out that there is another advantage of an examination over an investigation: To close an official criminal investigation against the prime minister, a detailed decision from the attorney general is required on the matter of it being closed for lack of evidence, or for lack of public interest. In comparison, an examination can be ended with a short announcement to the press with the justification of a lack of evidentiary basis for opening an investigation.

In his announcement, Mendelblit explains the ending of the examinations. Some were halted because the suspicions were found to be untrue. Others were stopped because of the lack of “evidentiary potential” which could develop into an evidentiary foundation that would raise a reasonable suspicion that a crime was committed. Mendelblit’s announcement did not provide details as to which examination was closed for which reason.

As for the investigation against Netanyahu, the attorney general’s announcement leaves the public with the understanding that in the two affairs in which Netanyahu was investigated, the police “examined extensively and searched in depth” and found suspicions that have not been refuted so far, and in which the evidence discovered could develop into “an evidentiary foundation that would raise a reasonable suspicion that a crime was committed.”

The customary defense relating to gifts and other benefits provided to a public servant is the claim of friendship. This is a claim that has been accepted in the past by the courts, including the Supreme Court, which acquitted former police Maj. Gen. Yaakov Ganot (today the director general of the Israel Airports Authority), who received such benefits as renovations to his home from a contractor friend of his. The Supreme Court ruled that these benefits did not cross the line of criminality.

Ganot’s acquittal was considered at the time a harsh blow to the State Prosecutor’s Office. No doubt Mendelblit and Nitzan know this ruling quite well. So we can assume that the evidentiary basis that underlies the criminal investigation against Netanyahu is such that it includes at least a preliminary answer on how to handle the defense’s claims that the source of these benefits was from a “friendly relationship.”