The indictment that was filed on Thursday against Prime Minister Benjamin Netanyahu creates a first-of-its-kind situation in the country’s history, which will likely lead to precedent-setting judicial decisions.
In the coming weeks and months, the political system will also have to adapt to the new situation. Netanyahu is seeking immunity from indictment. This is a serious issue Israeli lawmakers will have to tackle – perhaps via legislation. The premier is being charged with bribery, fraud and breach of trust in Case 4000, and with fraud and breach of trust in Case 1000 and Case 2000.
Haaretz Weekly Ep. 49
Here are some answers to the most pressing questions that arise from this dramatic development.
Doesn't Netanyahu automatically get immunity from prosecution due to his status as a member of Knesset?
Netanyahu has 30 days to request that the Knesset plenum grant him immunity so that he may avoid criminal trial. He is expected to ask to be granted this immunity, but if he does not do so within the allotted time, the legal proceedings against him will begin.
If the prime minister does submit his request, the Knesset's House Committee will discuss whether he should be given immunity. Should the committee approve this request, it will then be put to a vote in the Knesset plenum.
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However, since Israel's first election was held this year in April, no new House Committee has been appointed. Therefore, there currently isn't a body authorized to make this decision.
As long as a discussion isn't held by the House Committee regarding a request by the premier to give him immunity, the indictment against him cannot be filed. Consequently, the court will not be able to start any hearings related to his cases.
The Knesset could decide to appoint a House Committee especially in order to hold a session on Netanyahu's request for immunity. Alternately, the discussion by such a committee could be postponed until a new government is formed. In any case, Netanyahu's request for immunity and any decision to approve it must be justified on the basis of the reasons for immunity as stated by the Israeli law.
The first such reason is that the applicant has substantive immunity, which cannot be revoked. This substantive immunity covers offenses committed while the defendant served as a Knesset member.
The second pretext is the argument that the indictment was not filed in good faith – i.e., it is tainted by political motivations or by intent to harass, for example. Another pretext is that his actions could be examined by an internal Knesset forum as a disciplinary offense. The fourth reason is that the criminal proceeding could substantially harm the functioning of the Knesset.
Even if the Knesset House Committee and plenum decide to grant Netanyahu immunity, Attorney General Avichai Mendelblit or any other citizen could appeal the decision to the High Court. By the same token, Netanyahu could appeal to the High Court if the Knesset denies his request for immunity.
The High Court has intervened in the past in decisions involving the granting of immunity on the grounds that the Knesset exceeded its authority, that the decision to grant immunity was unreasonable or that that there had been a shortage of evidence to support any of the causes to grant immunity. Any decision by the Knesset regarding immunity for Netanyahu will likely be followed by a petition to the High Court.
When does Netanyahu’s trial begin?
The immunity proceedings, which precede a trial, will likely take a long time. After the 30 days given to Netanyahu to submit his request, the Knesset House Committee has to schedule a session, and then the Knesset plenum must schedule another session – and both may be delayed if the Knesset speaker takes action to do so.
Once the decision is made, an appeal will almost certainly be filed and then the High Court will discuss it and eventually hand down its ruling – a process that could last anywhere from six months to two years. If Netanyahu’s request for immunity is ultimately rejected, then the criminal proceeding in court will begin.
However, the criminal proceedings in court could also be delayed by means of legal requests for discovery of further evidence. If the prosecution declines to turn over certain requested materials, the issue could be decided in a separate judicial hearing. If the defendant has an interest in postponing the trial, the proceedings of requests for evidence discovery could drag on for a year.
In the political arena, a third election could conclude before the start of Netanyahu’s trial, and the results could give him a boost for advancing legislation that would delay his having to stand trial. One main possibility that was already raised would be passing a version of “the French law,” according to which a sitting prime minister cannot be tried until he leaves office. Netanyahu has previously said he opposes this initiative, but the Likud has repeatedly tested its feasibility.
Does Netanyahu have to resign if he is indicted?
This issue has never been decided in court. It would be precedent-setting for an indictment to be filed against a sitting prime minister. Section 18 of Basic Law: The Government stipulates two situations in which a prime minister ought to cease serving in his position in wake of an offense: The first is a decision by a majority of the Knesset after a trial court has convicted him of an offense involving moral turpitude; and the second situation is a conviction that has been confirmed at every appellate level. According to the Basic Law, in both cases, the prime minister’s resignation would occur following a conviction, and not during the indictment stage.
However, a Supreme Court ruling from 1993 could change matters entirely. Twenty-six years ago, the court ruled in what has since become known as the "Dery-Pinchasi precedent" that then-Prime Minister Yitzhak Rabin had to fire Minister Arye Dery and his deputy Rapahel Pinchasi due to a serious indictment against them.
Evoking this ruling, the court could order Netanyahu to resign despite the stipulations dictated by law. The High Court could use the legal interpretation which says that if such a rule applies to ministers, it should certainly be applied to prime ministers.
Another argument to be made is that a prime minister’s decision to remain in office once indicted and in the midst of legal proceedings seriously impacts his ability to do his job on behalf of the public.
Nonetheless, there is a significant difference between a minister and prime minister, as the latter is not appointed but rather elected. Therefore, the Supreme Court cannot say that a certain party’s decision to fire him or refrain from firing him is unreasonable. There is a legal opinion which says that it is up to the prime minister to decide whether to resign or not, and therefore the court may criticize the reasonability of his decision. An interim possibility the High Court has is to compel Netanyahu to declare temporary incapacity.
Does it matter that Netanyahu currently heads a transitional government?
The letter of the law permits a prime minister to serve in his position while on trial until a conclusive ruling after appeals is made. However, the questions about whether the prime minister can serve under an indictment or whether he is entitled to form the next government can only be answered based on a legal interpretation of the law.
Over the past several weeks, Likud officials have considered a scenario in which citizens would petition the High Court to prohibit Netanyahu from receiving the mandate to form the government, due to the pending indictment against him. A party official was skeptical that the court would prohibit Netanyahu from heading a transitional government under indictment, because the law doesn't touch on the premier's status in an interim government.
How long will Netanyahu’s trial last?
Based on previous trials of elected officials, Netanyahu’s legal proceedings can be expected to be spread out over about seven years. The indictment against former Prime Minister Ehud Olmert was filed in 2009, and the conviction was upheld by the Supreme Court in 2016. Former President Moshe Katsav’s legal proceedings lasted about four years: In 2007, a plea bargain was signed with him, in 2008 the trial began but he reneged on the plea agreement, an amended indictment was filed in 2009 and his conviction was ultimately upheld by the Supreme Court in 2011.
What possible sentence may be given for the offenses Netanyahu is charged with?
The maximum sentence for bribery is 10 years in prison. In practice, the court has never imposed the maximum sentence on elected officials who were convicted of bribery. Olmert was sentenced to 19 months in prison for bribery. Former minister Shlomo Benizri was convicted of accepting a bribe and was sentenced to four years in prison. Deri was convicted of bribery, fraud and breach of trust and sentenced to three years in prison. The maximum sentence for offenses of fraud and breach of trust is three years in prison.
One interest Netanyahu will have in trying to delay the legal proceedings concerns his age at the time of sentencing: If by the time a trial concludes Netanyahu is 77, the court will likely take the defendant’s age into consideration when issuing the sentence.