As Netanyahu Corruption Trial Opens, His Team Preps to Fight 'Every Step of the Way'

In first for Israel, sitting prime minister faces trial ■ His lawyers are expected to take an aggressive approach to delay actual presentation of evidence ■ Likud lawmaker says conviction would be 'greatest injustice in Israel's history'

Netael Bandel
Netael Bandel
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Benjamin Netanyahu arrives for a speech at his Jerusalem office, March 14, 2020.
Benjamin Netanyahu arrives for a speech at his Jerusalem office, March 14, 2020.Credit: Gali Tibbon/Pool via Reuters
Netael Bandel
Netael Bandel

Prime Minister Benjamin Netanyahu’s trial on charges of bribery, fraud and breach of trust will begin on Sunday at the Jerusalem District Court. This is the first time in the country’s history that a sitting prime minister will be facing a criminal trial.

Bibi swears in his colossal coalition and readies for a courtroom showdown

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Netanyahu’s case will be tried by a panel of judges headed by Rivka Friedman-Feldman, who will be joined by Oded Shaham and Moshe Bar-Am. On Sunday, the indictments will be read for the three separate cases the prime minister has been charged in.

Netanyahu’s two-lawyer defense team has not yet finished reviewing the material from the investigation against him on the corruption charges. They received an additional disc with material just last week. The defense team underwent changes recently after Yossi Ashkenazi resigned over a monetary dispute, which for a time left Amit Hadad as the only lawyer representing the prime minister. In recent weeks, Ashkenazi was replaced by Micha Fettman, who has experience in white-collar criminal defense cases.

But the defense team still lacks someone with expertise in corporate and securities law, which Ashkenazi had. The expertise is necessary for the Bezeq-Walla case, which involves allegations that the prime minister arranged regulatory concessions for the Bezeq telecommunications firm in exchange for favorable coverage on Bezeq’s Walla news website.

Netanyahu is therefore expected to hire a third lawyer, as long as the permits committee at the State Comptroller’s Office allows him to receive funding from his cousin Nathan Milikowsky and Michigan businessman Spencer Partrich. On Thursday, the permits committee held a hearing on the request, Netanyahu’s fourth one for permission to receive funds to finance his legal defense. The committee has asked for Attorney General Avichai Mendelblit’s position on the issue.

Until now, Netanyahu’s lawyers had taken a restrained approach for strategic, political and legal reasons. Over the past week, however, Netanyahu’s defense team took a more aggressive line when the prosecution insisted that the prime minister be required to attend Sunday’s opening session, when the indictment will be read. The prime minister’s lawyers had asked that he be excused, citing the expense involved in providing him security and the limited space in the courtroom with the Health Ministry’s coronavirus recommendations.

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“There is no escaping the conclusion that the prosecution’s response is not motivated by relevant considerations but is to serve the media campaign providing a picture of Prime Minister Netanyahu on the defendants’ bench, as a continuation of the ‘Anyone but Bibi’ campaign,” Fettman wrote, referring to his client by his nickname. “In case anyone hasn’t noticed, the election is already over.”

Sources associated with the prime minister said that if Ashkenazi had still been on the defense team, he wouldn’t have allowed such a response and would have moderated the team’s tone. With the approach of the trial, one of Netanyahu’s associates said there would be a fight “every step of the way.”

The defense team intends to file a large number of motions seeking disclosure of confidential material from the investigation against the prime minister. “This time, there won’t be concessions,” the source said. If the new, more aggressive line is successful, it is expected that following the reading of the indictment on Sunday, it will be a number of months or perhaps even a year before the trial begins in earnest with the presentation of evidence.

The new approach may prompt the prime minister to add a lawyer to his defense team with experience in dealing with massive amounts of investigative material and in the presentation of pretrial arguments before the prosecution puts on its case. The rules of criminal procedure permit Netanyahu’s lawyers to raise issues such as alleged defects in the indictment or other arguments asserting that the case violates fundamental principles of justice and fairness. These could include a claim of selective prosecution of the prime minister or procedural flaws that could take considerable time to be ruled on.

The Jerusalem District Court room where Netanyahu's trial will be held, May 21, 2020.Credit: Emil Salman

The prosecution and defense must also attempt to reach agreement on aspects of the conduct of the trial, such as the number of witnesses and who they would be. Currently 333 witnesses are slated to appear, so decisions on that issue would not be short in coming and it might be difficult for the two sides to come to an agreement.

The issue of access to the investigative material will likely be a greater focus of defense team. They can ask to receive additional material and may even request additional investigative work. When the prosecution and defense are unable to come to a consensus on these matters – this is inevitable – the three-judge panel will have to resolve these disagreements, which will take additional time. Since a considerable portion of the material developed in the investigation was not turned over on grounds of confidentiality, the defense lawyers will try to get as much of it released as possible, including testimony and police memorandums.

The defense team’s new approach is based on a number of principles. First is the legal justification that Netanyahu has the right to take maximum advantage of his right to defend himself by exposing flaws in the investigation and other defense arguments. His lawyers will concentrate on trying to show a lack of free will in the testimony of prosecution witnesses who struck agreements to turn state’s evidence.

A second justification involves the public aspect of the case. Defendants charged with white-collar crimes are usually interested in elegantly and quickly putting an end to their cases, rather than dwelling on the minute details. But Netanyahu has no such wish. He is interested in delaying the beginning of the prosecution’s presentation of the evidence – the actual trial – over the next year and a half, during which he will remain prime minister, before his coalition agreement has him switching places with Benny Gantz, the deputy prime minister.

Fettman, his new lawyer, is himself a former prosecutor. In an interview with the Calcalist business daily in 2011, Fettman said that “in cases of major public interest, something bad happens to the system. It enters a state in which the result that is required is the result that is achieved, ignoring discrepancies in evidence along the way.”

Benjamin Netanyahu and Benny Gantz wear face masks as they talk during a swearing in ceremony of the new government, at the Knesset, Israel's parliament, in Jerusalem, May 17, 2020.Credit: KNESSET SPOKESPERSON'S OFFICE/

As defense counsel, he was one of the lawyers representing Avigdor Kahalani, a military and political figure acquitted following a trial in 2000 on charges of breach of trust and obstruction of justice. He also represented Gilad Sharon, the son of the late former Prime Minister Ariel Sharon. The case against the younger Sharon was closed without an indictment. While representing Shula Zaken, who had been Prime Minister Olmert’s bureau chief, Fettman advised her not to sign an agreement turning state’s evidence against Olmert, but she did so through other lawyers.

At one time, members of the State Prosecutor’s Office staff and Netanyahu’s own lawyers, Hadad and Ashkenazi, expressed opposition to attempting to reach a plea agreement with Netanyahu. But in December, before he joined the defense team, Fettman told Radio Kol Barama that if he were representing the prime minister, he would recommend a plea agreement that included a presidential pardon.

“Handling a trial is a battle for one’s life, and I say that Netanyahu has something to fight over,” Fettman said. “At the same time, if there’s a chance of avoiding suffering and when the price is [one’s] public life, I would have recommended that he consider resigning in exchange for a pardon.”

“A pardon is only considered after a final conviction,” Fettman added, and made reference to a 1984 case in which two Palestinian terrorists who had hijacked a bus were killed following their capture.

“There is no precedent for such a pardon other than in the Bus 300 case, which involved a security-related incident, so they came to such an agreement. For them to consider a pardon, Netanyahu needs to request it and get the approval of the justice minister and ultimately receive the approval of the president, who by all logic would approve such a step. Legally, there would be a problem obtaining a recommendation from the attorney general, [but] it is accepted [practice] that the president not deal with a pardon that is not recommended by the prosecution.”

Outgoing Justice Minister Amir Ohana and Attorney General Avichai Mendelblit at the ministry's handover event, May 2020.Credit: Shlomi Amsalem / GPO

The new justice minister, who would have to approve such a request, is Kahol Lavan’s Avi Nissenkorn. In December, Gantz, the party’s leader, commented on the prospect of Netanyahu being pardoned in exchange for leaving political life. “We don’t want to see another prime minister entering prison,” Gantz told the Ynet news website, in a reference to Olmert, who resigned from office prior to his indictment. “When it becomes relevant, we will consider the matter in accordance with recommendations from the judicial system. If we can spare this embarrassing sight – that would be good.”

Security preparations

Speaking on Channel 12’s “Meet the Press” on Saturday, Likud lawmaker Miki Zohar, who is a vocal supporter of Netanyahu, reiterated the claim that Netanyahu’s trial is the result of “political persecution” against “a wonderful prime minister.” According to Zohar, “If he isn’t acquitted, it will be the greatest injustice in the history of the State of Israel.”

Zohar accused “many on the Israeli left and the media” of pushing for the indictments against Netanyahu, “because you couldn’t beat him in the polls. The police and prosecution worked for you. You’ve worked in perfect synergy … and in the end you got the result you wanted.”

He said the public has lost faith in the police and the prosecution, but insisted “we respect the court … and hope it will bring justice to light and acquit the prime minister.” Zohar added, “If the prime minister isn’t acquitted, we will lose faith in the system.”

Meanwhile, the Jerusalem District police will be reinforcing their presence in advance of Sunday’s session, partly in anticipation of protests in front of the courthouse. At this stage, two main protests are planned: a motorcade to Jerusalem by the pro-democracy Black Flag group, whose members will then demonstrate in front of the courthouse alongside a smaller group of pro-Netanyahu demonstrators.

Miki Zohar during a Knesset meeting, September 9, 2019.

The police expect the Black Flag and anti-Netanyahu demonstrators to be moved to the Sheikh Jarrah neighborhood some distance away, while pro-Netanyahu demonstrators will be moved to a closer location on Ibn Abu Talib Street. The police will not allow demonstrations on Saladin Street, where the courthouse and Justice Ministry are located.

A large contingent of police forces, including mounted police officers and the special forces unit, will be deployed in advance of Sunday’s session to prevent demonstrators from reaching the courthouse. The police expect that the Justice Ministry will continue to be accessible from the main streets, but they allow for the possibility that these streets may be closed depending on the situation.

The plans drawn up by the police were developed in coordination with the court administration and the prime minister’s security staff. Police are also expected to deploy in front of the Prime Minister’s Residence and the Knesset, on the expected route of the Black Flag convoy.

Josh Breiner contributed to this report

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