Analysis

As Prime Minister, Netanyahu Cannot Hide Behind a 'Presumption of Innocence'

Right-wing politicians who devote their careers to undermining the judicial system are suddenly anointing judges as supreme arbiters of what’s ethical and proper

Israeli Prime Minister Benjamin Netanyahu attends the weekly cabinet meeting at his office in Jerusalem on August 6, 2017.
GALI TIBBON/AFP

The Israeli right has a new mantra: The presumption of innocence. Cabinet ministers and other leaders of the coalition who have agreed to come out in Benjamin Netanyahu’s defense repeat the claim like parrots. Netanyahu is innocent unless and until he’s proven guilty. Therefore, all the demands that he resign or be removed from power, according to his would-be two-bit attorneys, are an affront to democracy, a plot against the will of the voter, an attempt to carry out a putsch and other such wild exaggerations.

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The problem is that they’re all talking nonsense. They are mixing up between Netanyahu the citizen and Netanyahu the prime minister, between a court of law and the court of public opinion. Citizen Netanyahu certainly enjoys a presumption of innocence. He is considered innocent until proven guilty and his guilt has to be proven beyond a reasonable doubt. Prime Minister Netanyahu, on the other hand, has no presumption of innocence. His guilt does not have to be established in a court of law, certainly not beyond a reasonable doubt. In order to convict him before the benches of democracy - the Knesset, the coalition, public opinion and history - it is enough to harbor reasonable suspicions or to rely on circumstantial evidence or to simply feel disgust and revulsion in your gut. That is sufficient to decide his fate and to deem him unworthy of holding his office.

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It is tempting to ascribe this muddle of the legal and public arenas, this mix-up between the unlawful and the unworthy to an honest mistake or even regrettable dimness, but this is not the case. Many of those who are now brandishing Netanyahu’s supposed presumption of innocence know that they are pulling the wool over a gullible public’s eyes. They are manufacturing an alibi first and foremost for themselves, one that can excuse the fact that they are not demanding that Netanyahu accept responsibility at least that he bother to explain the allegations against him. They are elevating the threshold for public condemnation to that of legal conviction, and thus exempting Netanyahu from responsibility for his actions.

Some are even going further by asserting that Netanyahu won’t have to resign even if he is indicted. This is where the juxtaposition of the prime minister with a private citizen becomes grotesque. A citizen does not decide on matters of war and peace, life and death, poverty or prosperity and the like, so the question of how he will handle his responsibilities while devoting himself to defending himself in court is irrelevant. A private citizen does not represent the state, so dragging him to court as a common suspect does not demean the rest of us. A private citizen did not appoint the attorney general or the chief of police and isn’t their superior, so an intolerably complex situation is not created when they decide he has committed a crime and should be prosecuted. But when duly appointed legal officers, including the attorney general who is a judge by standing, reach the conclusion the person who stands at the top of their own pyramid is a criminal, that is conviction enough, to all political intents and purposes. Such a prime minister cannot stay in office even for a day, unless one wants to turn government into a circus.

Never mind the irony of right-wing politicians who spend most of their days blasting the courts for being too “activist,” who are suddenly rolling over, playing dead and begging the judges to make up their mind for them. Those who portray the alleged  “trialization” of politics and government in Israel as the mother of all evils suddenly deciding that it is the only prism through which Netanyahu’s actions can or should be evaluated and judged. Those who call for bulldozers to run over the Supreme Court, who now concede to judges the right to decide Israel’s future.

Netanyahu invented this very trick during his first term in office. The so-called Baron-Hebron affair, in which Shas Minister Arye Dery and others allegedly conspired to appoint an attorney general who would clear Dery of criminal charges in exchange for his party’s support for the Hebron agreement that Netanyahu concluded with Yasser Arafat in 1997 was arguably the worst political and legal scandal in Israeli history. The Israeli police investigated it and recommended that Netanyahu be tried for fraud and breach of trust. The state attorney overturned their recommendation, saying there was insufficient evidence to ensure a conviction, but she and the attorney general at the time made no secret of their suspicions that Netanyahu was well aware of the conspiracy and played along with it. Israel’s Supreme Court decided, not unanimously, to accept their decision not to prosecute Netanyahu, though the minority opinion held that there was ample evidence to convict him.

And Netanyahu? He celebrated his narrow escape from prosecution as if he had just been crowned the most honest man alive. Even though legal authorities found that he had behaved with inexplicable negligence, at best, or had committed criminal offenses with full malice and intent, at worst, Netanyahu claimed he was as clean as a whistle. He savaged the media and other critics for conspiring to topple him from power, even though their claims were fully corroborated. The same story repeated itself in other investigations of Netanyahu throughout the years, most of which centered on petty corruption of this kind or another. Small wonder that he feels that he’ll get off scot free now as well, when he is either a suspect or was involved in at least four separate police investigations.

But there is no working democracy, at least one with a parliamentary system, in which a prime minister would survive a controversy as the big as the Baron-Hebron affair. It’s doubtful whether there are many countries in which a prime minister would remain at his post after it was revealed that his personal lawyer, who is also a family relative, stood to gain many millions of dollars from arms purchase deals that Netanyahu rammed through, against the recommendation of the professionals. Even if one accepts Netanyahu’s incredible claim that he was completely ignorant of what his close confidant was doing right under his nose, the information that already exists about the so-called submarines affair should suffice to see the prime minister resign. In a country, that is, with politicians who have a minimal spine and who wouldn’t agree to stand before the cameras to mumble something nonsensical about Netanyahu’s “presumption of innocence”, as his allies have in recent days.

Here’s another big difference between citizen Netanyahu and Prime Minister Netanyahu. The former can maintain his right to silence, can plead the Fifth in U.S. lingo, but the latter has no such right. Quite the opposite, in fact. He has a duty to tell all. Way before the police launched its protracted investigations, Netanyahu was duty-bound to explain his behavior to the public that elected him. He needs to explain how he accepted gifts worth hundreds of thousands of dollars from benefactors, for whom, in some cases, he carried out personal favors; he has to justify his backroom horse-trading with a newspaper publisher that he described in public as the devil incarnate; he has to persuade his voters that his suspect handling of the multi-billion dollar submarine purchase from Germany was completely unrelated to the fact that his lawyer and relative represented one of the parties; he has to persuade the public that there was nothing untoward in the fact that the man he handpicked to lead the Ministry of Communications bent over backwards to bestow benefits and favors on Israel’s largest telecommunications company, which just happens to be owned by another of Netanyahu’s buddies. And he has elaborate on his assertion that despite the billowing clouds of smoke that are enveloping him, there is no fire whatsoever behind them.

The presumption of innocence claim is the last gambit of a political leader who has been caught red handed and has no plausible excuse for his behavior. It is a miserable yet successful ploy to use legal clichés to camouflage improper behavior. If Netanyahu wants to keep on asserting his right to remain silent and if his backers wish to claim that he should enjoy a presumption of innocence then by all means, let Netanyahu give up his hold on power and return to being a private citizen, one who enjoys the full protections of the law.