Precedent Dictates That Netanyahu's Plea Deal Must Include Jailtime

In the last decade, Israel's prosecution has raised the threshold in crimes of breach of trust to include prison time. Anything less for Netanyahu will be a grievous violation of the principle of equivalence under the law

Ido Baum
Ido Baum
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Former Israeli Prime Minister Benjamin Netanyahu at the Knesset
Former Israeli Prime Minister Benjamin Netanyahu at the KnessetCredit: Maya Alleruzzo /AP
Ido Baum
Ido Baum

The decision is contrary to public interest, and the short time left is unreasonable, but a plea deal can be reached with Benjamin Netanyahu within two weeks. That is, before the attorney general, Avichai Meandelblit, goes home. The problem is that the penalty currently on the table is unreasonable, and harms the principle of equality under the law to a shocking extent.

In order to quickly reach a deal, Netanyahu must admit to all the facts currently included in the indictments in Cases 1000 (lavish gifts) and 4000 (Bezeq-Walla). There’s no time for this or that petty semantic dispute. Therefore, amending the indictment should be quick – the crime of bribery will be removed from Case 4000, the indictment in Case 2000 about his talks with Yedioth Ahronoth’s Arnon Mozes will be withdrawn entirely – and that’s that.

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Accordingly, Netanyahu would appear in court to plead guilty to two counts of breach of trust – at a high level of severity. Why so? The breaches of trust ascribed to Netanyahu are close to bribery. In Case 1000 the facts are barely a whisker from accepting bribes from businessmen. In Case 4000 the proposed plea deal takes the act of receiving a bribe and changes the label on it to breach of trust.

Under these circumstances, these are breaches of trust on the expensive side of the punishment scale. Any punishment that does not include actual prison time will be a clear deviation from the standard set by the court itself for such crimes. Unequal and lenient treatment for the highest-ranked defendant – this would be a grave public mishap.

The criminal justice system has come a long, arduous way to raise the threshold of punishment for crimes of breach of trust. Over the past 10 years this fight has met with success. The punishment for breach of trust has increased, and nowadays there is not a significant case of breach of trust that does not end with a prison sentence. Not community service – prison.

One can actually mark the turning point in a corporate breach of trust case. This felony is of the breach of trust family, but is considered a lighter offense than a breach of trust by a public official like Netanyahu.

It was Hapoalim Bank chairman of the board Danny Dankner who was convicted in district court in 2013 of corporate breach of trust, and one lesser offense (subterfuge.) He was sentenced to a year in prison under a plea deal. Dankner appealed the severity of the sentence. A year later, in 2014, the Supreme Court ruled on the appeal and reduced the sentence to eight months. The verdict was handed down by Justice Elyakim Rubinstein, with Justices Salim Gibran and and Esther Hayut – the current president of the court – concurring.

Corporate breach of trust is, as the name indicates, the corporate version of the felony of breach of trust by a public official. The corporate version is lighter because the harm is to the corporation and its shareholders. As Rubinstein explained in Dankner’s verdict, breach of trust by a public official is a more severe crime as it harms the public at large.

Rubinstein said the principle which the punishment for breach of trust is supposed to uphold is “the proper function of the public administration and government, the ethical conduct of public officials, the public’s trust in its leaders and elected officials, and the public interest entrusted to the public official.”

Despite this, Dankner received harsh treatment because he was the chairman of the board of Hapoalim Bank – a corporation with a public facet. Rubinstein wrote that “although … the severity of the crime stands out more when dealing with public employees, here we have a corporation providing a service to the public. It behooves us, more so than with other corporations, to apply to it the interpretive norms prevalent regarding the crime of breach of trust by a public employee – including the severity ascribed to such crimes.”

The Dankner verdict outlined the punishment policy in both the public and corporate iterations of breach of trust. Dankner, incidentally, was sentenced to pay a million-shekel fine, in addition to the prison sentence. A fine awaits Netanyahu as well, should he be convicted. After his crowdfunding exercise, he should know that a felon cannot pay off his fine with donated funds.

Dankner’s verdict also set the range of punishment for crimes of corporate breach of trust – six to 18 months per count. In a case of breach of trust by a public employee, the penalty must be higher.

Be harsh with a PM, not lenient

Since Dankner, the threshold of punishment for breach of trust is imprisonment. In 2015 former Bat Yam Mayor Shlomi Lahiani was sentenced to eight months in prison after pleading guilty to three counts of breach of trust. Lahiani was also assigned moral turpitude – which banned him from any public office for seven years.

The Lahiani case further solidifies the imperative to impose an actual prison sentence for crimes of breach of trust. Lahiani’s case is not as severe as the breach of trust allegedly committed by Netanyahu. The harm caused by a mayor’s breach of trust is smaller by far than the harm caused by that of a prime minister. Which is to say, Lahiani’s sentence is a starting point, from which the only way is up.

In 2017 former Tourism Minister Stas Misezhnikov pled guilty to one count of breach of trust by a public official, and was sentenced to 15 months in prison and a 70,000-shekel fine. Misezhnikov received no funds directly, but was convicted of promoting a student festival in Eilat and concurrently asking the organizers to employ a woman with whom he was involved, without revealing the relationship.

The public aspect of the Misezhnikov case is also more modest compared to the broad public implications of the breach of trust ascribed to Netanyahu. Considering the standards of punishment reached thus far in plea deals, and the fact that Netanyahu’s breaches of trust have been found particularly grave – and taking the defendant himself into consideration – the reasonable sentence should range from one to two-and-a-half years in prison. A hefty fine must also feature. Moral turpitude? It goes without saying.

The fact that the defendant was prime minister during the commission of the crimes is a reason for harsher punishment, not leniency. Alongside Netanyahu’s contributions to the State of Israel, one must also place his untrammeled attacks upon the justice system. Precedent has already determined that punishment must deter and promote proper conduct.

It’s hard to see a prime minister going to prison, but it’s happened before. Unpleasant? No doubt. But if former Prime Minister Ehud Olmert served a lengthy prison sentence, why is Netanyahu’s blood any bluer than his predecessor’s?

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