The bribery case against former Prime Minister Benjamin Netanyahu in Jerusalem District Court is a large and complex one. Nevertheless, half a year of testimony from the first witness alone is intolerable. If the prosecution’s other key witnesses testify at similar length, the judges will be writing their verdict in retirement.
Even the judges felt that the testimony from the first witness, Ilan Yeshua, the former CEO of the Walla news website, went on too long. They repeatedly begged the defense attorneys to curtail their exhausting cross-examination, which consumed 25 of the 33 days of hearings.
The discovery of evidence that prosecutors hadn’t provided to the defense in advance, which made the prosecution the target of criticism from the court, also delayed the trial for several weeks. Many people, including Supreme Court justices, have said that Israel’s lengthy criminal proceedings must be cut short, but opponents of change have expressed concern that it would undermine defendants’ rights.
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Nevertheless, Yeshua’s testimony could certainly have been shortened significantly without undermining the defense. He was questioned for days about details that contributed nothing.
The prosecution used the court’s summer recess to draw lessons from Yeshua’s testimony. After concluding that the new material given the defense included some items that would have buttressed the prosecution’s case if it been included in the indictment, the prosecutors considered amending the indictment. But they ultimately decided that it would do more harm than good.
The current case is just one of three that Netanyahu is facing in Jerusalem District Court on a range of corruption charges stemming from his alleged conduct as prime minister. He denies any wrongdoing.
In the case currently being heard, dubbed Case 4000, the former prime minister is charged with bribery, fraud and breach of trust, arising from allegations that he traded favorable coverage from the Walla website for government regulatory concessions to Walla’s parent company, the Bezeq telecommunications firm.
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In the view of the prosecution, the defense lawyers’ attacks on Yeshua’s credibility had an impact on specific issues but didn’t undermine the bigger picture in the case. That’s crucial, since he provided key evidence about Netanyahu’s demands for favorable coverage from the Walla site – and the way the site acceded to those demands.
Prosecutors do acknowledge, however, that the cross-examination managed to blur the distinction between Walla’s acceptance of Netanyahu’s demands and its acceptance of demands from other politicians. They have therefore decided to try to use the rest of the trial to highlight their position that unlike demands from other politicians, which Yeshua acceded to simply because he liked pleasing them, he had no choice but complying with Netanyahu’s demands. And this, they allege, was due to pressure from Bezeq’s controlling shareowner at the time, Shaul Elovitch, who is also a defendant in the case.
For that reason, when the next witness, Aviram Elad, Walla’s former editor-in-chief, began testifying on Monday, prosecutor Judith Tirosh opened by asking, “How free were you to decide otherwise?”
In cross-examining Yeshua, Netanyahu’s lawyers revealed their two main lines of defense. One is that many of the 315 requests for altered news coverage were completely legitimate. The other is that to the extent that Netanyahu’s other requests were accepted, that wasn’t unusual.
For example, they attempted to show that dozens of the 315 requests were merely press releases sent to all the media outlets or requests to publish an item that had already appeared elsewhere and so forth. And in some instances, Yeshua thought the requests were justified. “In this case, there was definitely a journalistic need to add Netanyahu’s response to the article,” he said of one request.
Nevertheless, it’s difficult to know how successful that line of defense has been, since even if the defense undermines the importance of most of the 315 demands, there would still be plenty of other evidence left on the bribery issue.
As for the argument that Yeshua was the driving force behind the policy of appeasing people with power, he never really sufficiently explained himself. He even admitted that he sometimes acted like a doormat.
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But he also insisted that Elovitch’s demands regarding Netanyahu were unlike those from other politicians. Even under cross-examination, no evidence surfaced of any other politician who was able to intervene in the appointment of staff at Walla.
Defense lawyers argued that the staffing changes in question were at Yeshua’s initiative and not Netanyahu’s. But even if they prove this, it won’t alter the fact that Netanyahu made the requests, which could bolster the prosecution’s claim that he had influence over how the website was run. As a result, when former aides of Netanyahu testify and are cross-examined later, the defense will attempt to show that the demands came from the aides rather than Netanyahu himself.
When it comes right down to it, it’s not Yeshua’s journalistic ethics that are on trial. Does the fact that he acquiesced to the demands of many other politicians clear Netanyahu of guilt? That depends on the extent to which the prosecution can portray Yeshua’s acquiescence to Netanyahu as exceptional.
To prove bribery, the prosecution has to show that some kind of benefit was given to a public figure (in this case Netanyahu) in exchange for his use of his official position to take some action.
In this case, according to the indictment, Elovitch provided slanted, favorable coverage to Netanyahu in exchange for government regulatory relief from Netanyahu, in his role as communications minister, for Walla’s parent company, the Bezeq telecommunications firm.
For its part, the prosecution considers “exceptional acquiescence” to Netanyahu’s demands, rather than merely “acquiescence,” as the act constituting the bribe. By so doing, according to legal experts with whom Haaretz spoke this week, it imposed a higher bar on itself than the law required.
“Had Elovitch given Netanyahu cashed-filled envelopes, would they define it as an ‘exceptional’ gift of envelopes?” one asked. “Effectively, the prosecution’s definition of the acquiescence as exceptional implicitly assumes that unexceptional acquiescence wouldn’t be characterized as a quid pro quo constituting bribery. That’s an open invitation for the defense attorneys.”
The prosecution chose to deem Walla’s acquiescence as “exceptional” because it believed that while many media outlets sometimes accede to politicians’ requests, the acquiescence to Netanyahu’s requests exceeded the norm. But how does one determine what level is normal and what is excessive? There are no legal precedents when it comes to deeming slanted coverage as a bribe, but other bribery cases could furnish clues.
For instance, in convicting former deputy cabinet minister Shlomo Benizri of taking bribes, the court said the benefits he received “had an extremely significant financial value, beyond that accepted even among very close friends.” Although that court never defined the norm, it was clear to the court that the benefits went beyond that. So the court in Netanyahu’s case might also be convinced that the acquiescence was exceptional even without defining what constitutes "normal" acquiescence.
That's in contrast with the case of businessman Roy Mussaffi, who was acquitted of bribing former cabinet minister Benjamin Ben-Eliezer despite admitting that he loaned him a large amount of money. That's because the court was convinced that Mussaffi had bestowed lavish loans on many people, and that the amount he loaned Ben-Eliezer “was far from being exceptional in the landscape of the defendant’s financial life.”
One case sure to star in the summations in this case involved Jacob Weinroth, the lawyer who trained Netanyahu’s current legal team. Weinroth was accused of providing free legal services to a tax assessor in exchange for the assessor granting tax relief to Weinroth’s clients. But he was ultimately acquitted because the court concluded that he also provided free legal services to other customers – and the prosecution failed to prove that his help to the assessor deviated from his firm’s standard pro bono practices.