Analysis

Mark Your Calendars, Netanyahu's Indictment Is Coming. Afterward, Nothing Will Be the Same

While the prime minister works all the angles to ensure he stays out of jail, those within the legal system are doing their own calculations intended to bring him to justice

Prime Minister Benjamin Netanyahu.
Reuters

At first glance, the decision by Attorney General Avichai Mendelblit to set a date for Prime Minister Benjamin Netanyahu’s hearing four months down the line, in early October – between Rosh Hashanah and Yom Kippur – resembles just one more instance of the attorney general caving in.

A hearing at the beginning of the month of High Holy Days apparently means that a final decision on whether to indict the premier will not be made until the first quarter of 2020. State Prosecutor Shai Nitzan, the driving force behind the decision to try Netanyahu in all three cases, on suspicions of bribery, fraud and breach of trust, is leaving his post on December 16. He’s Mendelblit’s right hand, the basis for the judicial construction against the suspect as set forth in the attorney general’s charge sheet.

But on second thought, there’s another way to view the decision. First of all, there’s the timing. The default in this country and the national custom is to postpone matters that are not urgent or lifesaving in nature until “after the holidays.” The week between Rosh Hashanah and Yom Kippur is a classic holiday “bridge,” in the local parlance. Even people who haven’t gone abroad don’t really work on those days.

Not this time, however. The staff at the Justice Ministry will be working hard during the Days of Awe in order to send the attorney general home with all the necessary materials – and with a clear goal: to come to a decision before Nitzan leaves. Not within six months’ time, but rather two. Mendelblit knows every word and punctuation mark; there’s not much that will surprise him.

Senior sources in the legal establishment said this week that the attorney general wants the state prosecutor by his side not only at the hearing but also when the final decision on indictment is handed down. And that’s a judgment that, as is known by both Netanyahu and his team of lawyers – who are falling by the wayside like autumn leaves on the sidewalks of Paris – can only go one way.

The political arena, and particularly the emerging coalition, which is being formed in agony and is stumbling toward the deadline, would do well to open calendars and stick a pin into the beginning of December. Absent huge dramas in the hearing or in other realms, an indictment will be handed down against a serving prime minister during that month.

To borrow from other realms, in his letter to the lawyers the attorney general effectively signed a death warrant for the suspect Mr. Netanyahu. True, there will be immunity or an “overriding” of the Supreme Court, or both, and he won’t go immediately. But from the moment the indictment is in the public domain, together with the testimonies and the evidence and the recordings, those that will be leaked and those that will be heard in court during the procedures launched against the other suspects in the three cases – the collective consciousness will be transformed.

Netanyahu will no longer be the same Netanyahu; Likud will no longer be the same Likud. Its senior figures, the pretentious ones who see themselves as the party’s future leaders, and other people of conscience, will not be able to conduct political, parliamentary and governmental business as usual. A heavy cloud will loom over the government offices and the Knesset in Jerusalem. The Supreme Court and the few gatekeepers who will remain in place will be the targets of relentless attacks. But there will be people who will not accept that situation lightly, either.

The opposition is organizing a demonstration – the first of several, they promise – on Saturday evening in the compact plaza of the Tel Aviv Museum of Art. Speakers will be party leaders Benny Gantz and Yair Lapid (Kakhol Lavan), Avi Gabbay (Labor) and Tamar Zandberg (Meretz). Not MK Ayman Odeh, co-leader of the Arab-Jewish Hadash-Ta’al slate. Some say he was invited, was slow in responding, and when he replied in the affirmative was told that he’d missed the boat, the list of speakers had already been finalized.

The MKs who did the coordinating and ensured that all the organizations and movements would agree to demonstrate under one umbrella are MKs Ofer Shelah, Itzik Shmuli (Labor), Ahmad Tibi (Odeh’s partner at Hadash-Ta’al) and Tamar Zandberg. They see the demonstration as a huge achievement. There will be one address for everyone who wants to protest: jurists, businesspeople, judges, retired officers, intellectuals, high-tech brains, students.

The protest movement will gather momentum, they believe, as time passes and the scale of the destruction being inflicted on Israeli democracy becomes more apparent. Their aim is create a sense of insecurity for Netanyahu about his ability to implement his malicious plans. When the street speaks out, the politicians can’t ignore it. There’s no need for a whole village, as in the American metaphor, but rather for five or six individuals of conscience in the coalition, especially in Likud, who will say: Enough, no further.

Comptroller chaos

On Monday, MK Yair Lapid (Kahol Lavan) was looking for Elyakim Rubinstein, a retired Supreme Court justice. The deadline for submitting the names of candidates for the post of state comptroller was midnight, and the clock was ticking away. Rubinstein was in the United States, but that didn’t stop Lapid from phoning him. After a long conversation, the former justice rejected Lapid’s importuning to be the candidate of the opposition parties.

Kahol Lavan has looked high and low in the past two weeks for a retired judge who would agree to run for the post. (The state comptroller is elected by the Knesset.) MK Ofer Shelah went through all of them, one by one, from the Supreme Court down to the district courts. All he heard was nyet. The candidate finally chosen was Israel Defense Forces Maj. Gen. (res.) Giora Romm, formerly the director general of the Civil Aviation Authority and head of the Road Safety Authority.

Romm had suggested himself. He has an impressive administrative record, and is considered thorough, probing, inquisitive and fair. He would come to work, not to spend seven years attending state ceremonies as part of the A-Team. He was the Israel Air Force’s first ace. When necessary, he knows how to aim, release and hit the target.

The prospective coalition parties’ candidate to replace Joseph Shapira is Matanyahu Englman, director general of the Council for Higher Education, an appointee of outgoing Education Minister Naftali Bennett. Englman meets the threshold requirement laid down in the Balfour Street war room at the start of the race: He or she needed to be ABJ – anything but a judge. He is an apparatchik. He possesses no qualities that will prompt cabinet ministers to sit up straight and adjust their ties before a meeting with him. He arouses no apprehension and no reverence. His worldview concerning the comptroller’s task, as he told it to the freebie newspaper Israel Hayom, left the ministers feeling very serene and hopeful. He’s a clone of Daniel Hershkowitz, the former leader of Habayit Hayehudi, who was catapulted into the super-sensitive post of civil service commissioner and hasn’t been heard of since. Another gatekeeper felled by the government.

The next state comptroller will be chosen in a secret vote in the Knesset plenum on June 3. The opposition is anxious to hand Netanyahu a first, stinging defeat, even before his government is sworn in that day or the next day. That’s the fuel in the opposition’s engines. Romm’s chances of defeating the candidate who has a built-in advantage (probably 65 coalition members and 55 opposition members), depends on the number of defections from the right side to the left, and on the premise that the opposition camp, which has nothing to offer other than Schadenfreude, does not screw up. Or will do so only small-time.

Romm is a good candidate, but the opposition had a winning card and decided to forgo it. His name is Eyal Yinon, and he has served for the past nine years as the Knesset’s legal adviser. He’s the closest thing to a judge in terms of the requirements for his present job, and is esteemed by all parties. His rulings over the years have always stood the test. It wouldn’t have been hard for him to defeat a featherweight candidate like Englman.

But Kahol Lavan didn’t even approach him to run. Not because Yinon disappeared under their radar or because they were fearful of losing. On the contrary: They knew he would win. But their overriding imperative is to leave him in his present position in the Knesset, which will be the major sparring ring for all the judicial legislation Netanyahu is planning to enact.

The struggle over the immunity bill and over the bill that would prevent the Supreme Court from being able to overturn Knesset legislation, along with the other afflictions looming over us, is a parliamentary one. In June and July, the Knesset will be inundated with private and/or coalition-supported bills – some of them already in the pipeline – that will strike at the heart of Israeli democracy. A string of explosive devices will be laid at the door of the Supreme Court, perhaps also at the door of the institution of the state comptroller. The next justice minister, be it Yariv Levin (Likud) or Bezalel Smotrich (Union of Right-Wing Parties), will press the button, as many times as needed, until nothing remains but dust and ashes.

The opposition doesn’t have many tools with which to fend off the majority as it attempts to ride roughshod over it. The office of the Knesset’s legal adviser, under its current head, is crucial for them. If Yinon were to leave on June 4, a search committee would have been formed, to find his replacement, a tender issued and finally the names of four candidates (at most) would have been submitted to the Knesset Speaker and its presidium. In the meantime, the legal adviser’s unit would have operated under a weak, temporary replacement with limited authority, and there’s no way of knowing who would be elected in the end.

Kahol Lavan and the other opposition parties did their cold calculation and decided to pass up Yinon. The distress of the present overcomes the hopes of the future. Yinon was sacrificed, without even knowing it.

MK Bezalel Smotrich.
Olivier Fitoussi

Dire forecast

When Naftali Bennett left Habayit Hayehudi, before the last election, and embarked on an independent path with Ayelet Shaked, which ended at the bottom of the cliff with limbs shattered, he cited an interesting rationale. The religious-Zionist movement will always be the whipping boy of the prime minister, he said; we are his useful idiots. He toys with us and maneuvers us. Because he knows we’re in thrall to him, following him as though in his thrall.

Bennett tried to break that pattern of behavior. He had the occasional success, notably when he extorted the Justice Ministry from Netanyahu for Shaked, two days before the deadline for forming a government, in 2015.

What Bezalel Smotrich is doing these days is acting like Bennett on turbo. Just this week, a few days before the deadline for forming a coalition, he assured an interlocutor that the justice portfolio isn’t negotiable, as far as he’s concerned. “They don’t know who they’re messing with,” he said of his colleagues in Likud. Actually, they do know, and at night, before dropping off to sleep, they utter the names of Bennett and Shaked with infinite longing.

Smotrich has no real leverage against Netanyahu. What can he do: vote no-confidence in the new government, along with the left and the Arabs? Accordingly, the prevailing assessment is that he won’t get the Justice Ministry. To put someone like him into the bureau on Saladin Street in East Jerusalem, would be like appointing Amir Mulner or some other crime family boss as police commissioner. Netanyahu doesn’t want that. He prefers Yariv Levin at the ministry, so he will be able to control the intensity of the fire he intends to unleash against the judiciary.

The second problem is the agreement that was signed between the crafty Smotrich and MK Rafi Peretz, the other head of the Union of Right-Wing Parties’ slate. Only a political novice like Peretz could have agreed to its terms. The agreement stipulates that Smotrich, who heads the two-seat Tekuma faction, which survived the election only because the Kahanist Otzma Yehudit was also integrated into the Union, reserves the right to be the first to choose one of the two portfolios that the umbrella party will receive. Peretz, whose party has four seats in the union, will choose second.

Which means, if not justice, then education. Meaning that the racist, homophobic, benighted Smotrich, formerly suspected of planning terrorist attacks – and in whom, not even the most sophisticated scanning device would be able to detect even one educational or principled bone not dripping with hatred and messianism – will be in charge of the glory of Israel’s creation, the Supreme Court. Or, alternately, responsible for the education of Israel’s children.

Vote to-do

Monday evening. The Knesset plenum is buzzing. Outgoing Culture Minister Miri Regev enters and makes her way to the government benches. She passes the first row of MKs, where Gideon Sa’ar (Likud) is sitting. A week after Regev made a total laughingstock of herself by retracting her statement that she had voted for Sa’ar in the Likud primary and claimed that she said so “for the sake of Likud unity” – she approached him, her face beaming.

“I want to shake your hand, even though I didn’t vote for you,” she said in a loud voice, so that those within earshot, including MK Nir Barkat and other Likud MKs, would hear.

“I have no problem with that,” he replied. “I’m only concerned that your future version will change yet again.”

“I didn’t vote for you and you didn’t vote for me,” Regev reiterated.

“Right,” Sa’ar responded, “but I never said I voted for you, because I really didn’t vote for you.”