This Is How Netanyahu's Attorneys Will Try to Save Him From Indictment at Wednesday's Momentous Hearing

The main question regarding the outcome of Netanyahu’s hearing is whether the bribery accusations in Case 4000 will remain

Benjamin Netanyahu at a Likud meeting, September 2019.
Emil Salman

Seven years ago, the lawyers for then-foreign minister Avigdor Lieberman succeeded in shrinking, in marathon hearing sessions, the list of offenses for which then-attorney general Yehuda Weinstein planned to prosecute him to a miniature indictment, on whose charges he was later acquitted. On Wednesday morning, Prime Minister Benjamin Netanyahu’s lawyers are scheduled to report to the offices of Attorney General Avichai Mendelblit, in an attempt to achieve a similar outcome. Over the course of four days they will challenge the main contentions of the draft indictment drawn up by the attorney general.

They will focus their efforts on the so-called Case 4000, involving allegations that as communications minister, Netanyahu endeavored to aid Shaul Elovitch, the controlling shareholder of the Bezeq communications group, granting regulatory favors both directly and through intermediaries with an estimated combined value of hundreds of millions of shekels. Netanyahu’s legal team presumably recognizes that to the attorney general, the pressure that Netanyahu allegedly applied on subordinates, particularly former Communications Ministry director general Shlomo Filber, to approve the Bezeq-Yes merger and later on to delay a reform in the wholesale communications market were the most damaging to their client of all the investigations against him.

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Lawyers for the prime minister-cum-communications minister are therefore expected to depict their client as a passive character in the story, who at most signed off on transactions that had been approved by all the regulators and that did not contain any special favors for Elovitch. They will portray Filber, a witness for the state who told investigators he advanced Bezeq’s interests on the instructions of Netanyahu, as a liar who sold out his boss only after realizing there was evidence proving that Filber had served as a collaborator and agent of the monopolistic corporation from within the Communications Ministry out of shady personal motives.

Regarding the second component of the bribery charge – the favorable coverage that the Elovitch-owned news website Walla gave Netanyahu – the lawyers are expected to argue that favorable coverage is not bribery, that this is the first time the state has issued an indictment in which news items are “translated” as illegal favors, that at most Netanyahu asked Elovitch to rein in a leftist news site that persecuted him, and that there is no connection between his legitimate requests from the businessman (“all the prime ministers spoke with publishers”) and Netanyahu’s minimal interference with matters concerning Bezeq.

His lawyers will try, in Case 4000 and also in Case 1000 — in which Netanyahu allegedly received gifts from Hollywood mogul Arnon Milchan in return for political favors — to erect a wall between the prime minister and his wife, Sara Netanyahu, and to argue that he was not aware of her (and their son Yair’s) obsessive demands from Elovitch and his wife, Iris, for fawning coverage, nor of the cases of Champagne that Milchan delivered to the prime minister’s residence in Jerusalem.

Two additional lines of defense in Case 1000 are friendship and reliance on legal advice. “Ask Milchan, in every meeting he’d call me ‘my brother, my brother, my brother’ [in English],” Netanyahu told police investigators. “And did Sheldon [Adelson] also call you ‘my brother’?” national police fraud squad chief Koresh Bar-Nur asked Netanyahu, referring to the Jewish-American billionaire who established the free Hebrew daily Israel Hayom for the prime minister’s benefit. “Sheldon didn’t,” Netanyahu replied, adding that they were close friends. “And James Packer?” Netanyahu was asked, referring to the Australian billionaire who paid for some of the gifts. “He wasn’t a friend,” Netanyahu said. “He was simply, how should I say, a great believer. Even an admirer.”

Netanyahu’s attorneys will also argue that his former lawyer, the late Jacob Weinroth, had told him that it was all right for him to accept gifts from close friends. “Weinroth said to me, ‘Are they asking you about cigars? Tell them that I told you that there’s no problem with it,’” Netanyahu told investigators.

The lawyers will try to deflect Mendeblit’s assertions that Netanyahu granted Milchan political favors and acted in a gross conflict of interest (including by helping him get an extension on his U.S. visa, and aiding his attempt to purchase Channel 2 franchisee Reshet and merge it with the competing franchisee, Keshet) by arguing that Netanyahu had in the past acted against Milchan’s financial interest (his desire to close Channel 10), that his aid to the Hollywood producer was negligible and legal, and that he would have done the same (regarding the visa, for example) for anyone who contributed to national security, as Milchan had in the past.

Netanyahu’s lawyers will also challenge the prosecution’s thesis, try to reduce the number of cigars that their client received from Milchan and also to rebuff the claim that the gifts were wrapped in sealed black bags because everyone involved knew at the time that what they were doing was wrong. “You’re asking me why the cigars were put into a bag?” Netanyahu asked his interrogators rhetorically. “Just because! Not because it’s problematic. Because you don’t want to see it come out. Yes?”

In the investigation known as Case 2000, in which Netanyahu allegedly struck a deal with Yedioth Ahronoth publisher Arnon Mozes, the lawyers are expected to argue that their client had no intention of going through with the deal, that Mozes was constantly trying to extort him and that Netanyahu continued his secret conversations with him only to buy time and to protect his family from damaging reports in the media outlets of “the man who secretly controlled the state” during the campaign for the 2015 election.

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They will of course claim discrimination: 43 Knesset members voted for the so-called Israel Hayom Law, which would have prohibited the free distribution of Yedioth Ahronoth’s principal competitor. A few of those lawmakers, and most of all Yair Lapid, allegedly had a quid pro quo relationship with Mozes. None of them has been questioned as a possible criminal suspect except for former Labor MK Eitan Cabel, and the investigation against him was closed without charges. The only one who is paying the price is Netanyahu, who waged open warfare against the strongman publisher. “People don’t know what goes on in this country,” Netanyahu told police investigating Case 2000 in describing his relationship with Mozes, in a portion of the transcript that is being published here for the first time.

“They don’t know about that hidden power,” Netanyahu said. “Journalists know. A few hundred people know, they keep the secret. .... [Mozes] had his way with all the [Israeli] governments for decades until I came and refused to play the game. I’m in effect the only one. I fought him so he fought me and succeeded in bringing me down. ... The policy was upended overnight and then [Ehud] Barak came and afterward Arik [Ariel Sharon] and he supported them 100 percent, not 100 percent, 2,000 percent. He also supported [Ehud] Olmert 3,000 percent to the last moment, and also afterward. ... He tried to close down [Israel Hayom] and I’m fighting an all-out war, I’m facing a difficult challenge. ... And I know that I’m sliding toward elections and I’m playing with him. I had no intention of going through with that agreement.”

The hearing is supposed to end before Yom Kippur, which begins Tuesday evening, October 8, and within a few weeks afterward Mendelblit is to announce whether or not he will issue charges against Netanyahu, and for which offenses.

It’s a pretty safe bet that Netanyahu’s legal position after the hearing will not be identical to that of Lieberman. Unlike the Lieberman affair, which was conducted in numerous languages and took place in venues including Limassol, Vienna, the Virgin Islands and Moldova, the numbered cases involving Netanyahu are mainly local. They don’t feature countries that refused to cooperate with Israeli authorities, key witnesses who disappeared, important associates of the main suspect who are foreign nationals who almost certainly would not come to Israel to testify or who zealously maintained a conspiracy of silence. None of these elements, which caused first the prosecutors in Lieberman’s case and then the attorney general to get cold feet, exists in Netanyahu’s cases.

The decision not to prosecute Lieberman on the most serious charges was also directly influenced by Olmert’s surprising acquittal in the Talansky and Rishon Tours affairs in summer 2012, shortly after Lieberman’s hearing. Since then, a few significant verdicts in corruption cases have been issued (Holyland, Shimon Gapso) that support the prevailing mood in Netanyahu’s pending cases.

In addition, in the Lieberman case the attorney general and the state prosecutor at the time, Moshe Lador, were very skeptical regarding the ability of the prosecutors in the economic crimes department of the State Prosecutor’s Office to argue such a complicated, weighty case in court. They didn’t trust them implicitly. That’s not the situation with the Netanyahu cases.

The main question in regard to the outcome of Netanyahu’s hearing is whether the bribery accusations in Case 4000 will remain. It’s the only charge over which there was total consensus among all of the prosecutors involved in the cases. It would seem that the bribery charge will be removed only if Netanyahu’s lawyers are able to completely scramble Mendelblit’s brains and squeeze to the smallest size possible the character of their client’s actions and his awareness of the Walla coverage’s gross bias in his favor.

In Case 1000, senior prosecutors and above all State Prosecutor Shai Nitzan and senior prosecutor Liat Ben Ari believed Netanyahu received bribes from Milchan. Mendelblit, however, supported by other high-ranking prosecutors, settled for the offense of fraud and breach of trust, and that charge is unlikely to be dropped.

In Case 2000, Nitzan and Ben Ari thought the recordings of the negotiations between Netanyahu and Mozes show that Netanyahu requested a bribe, but Mendelblit was on the fence for days over it, and at one point even considered closing the case. What will make that difficult for him to do are the recordings: He identified bribery in Mozes’ blunt offers to Netanyahu (passage of a law in exchange for keeping Netanyahu in government by means of favorable coverage), but did not find symmetry between the two, and reached the controversial conclusion that Netanyahu never intended to go through with the corrupt deal.

The attorney general nevertheless felt that Netanyahu did not conduct himself in a manner becoming a public figure when he continued the negotiations with the publisher and discussed the bribery offer in great detail, and for that reason he included the offense of fraud and breach of trust in the draft indictment. It will be interesting to see whether Mendelblit’s great hesitation in Case 2000 from the start will have an effect on the hearing’s outcome.

In a few weeks we will learn whether the draft indictment against Netanyahu will be the attorney general’s final line of retreat, or if we can expect another dramatic development in this nearly four-year-long saga.