Analysis |

Netanyahu Indictment Highlights Key Tool to Protect Democracy From Its Destroyers

The offense of breach of trust, not straight bribery laws, protects the public in a world of corrupt connections between politicians and the wealthy

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Attorney General Avichai Mendelblit speaks at an event in Jerusalem, Israel, August 26, 2018.
Attorney General Avichai Mendelblit speaks at an event in Jerusalem, Israel, August 26, 2018.Credit: Olivier Fitoussi

The felony offenses of fraud and breach of trust are often called procedural or administrative offenses. This is false. The most important duty of a public servant is loyalty to the people. The entire government is founded on the trust in this duty being fulfilled.

You can’t demand public servants not to innocently err; you can’t demand that they’ll always know how to navigate a path toward the good of the public. But you can demand that the public’s interest be at the forefront of their work.

When a public servant does something while in a serious conflict of interest – for instance, when he receives expensive gifts and favorable news coverage, as is alleged in the cases against Prime Minister Benjamin Netanyahu – he blatantly tramples his duty to be loyal to the public.

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Thus, public servants should preserve with the utmost care their greatest treasure, their discretion, which should not be tarnished by ulterior motives.

When a person puts himself in a conflict of interests, he deprives himself of the essential ability to act properly. This is incurable, because even if the public servant wishes to act properly and believes he has no ulterior motive, he’s still affected.

Viewpoints, perspectives, evaluations – none of these can remain unaffected by a conflict of interests. Bribery, which is nothing but a private conflict of interests, blinds the eyes of the wise, but so does a conflict of interests at the heart of a breach of trust.

Moreover, when the conflict of interests doesn’t occur because of bribery – for example, when a person acts to promote the interests of someone he cares about, depends on or is indebted to – the blinding influence can be much stronger than that of a bribe. Furthermore, it would still be considered a bribery felony on both sides if the public servant didn’t act in favor of the person bribing him.

Yet the ultimate evil that the public servant can do is his consciously acting against the public interest; for example, by approving a deal while knowing it’s bad for the public. Such actions are actually considered breach of trust, not accepting bribes. From this standpoint, breach of trust – whose maximum punishment may be less than that for accepting bribes – involves more serious acts than accepting bribes.

The crime of breach of trust is a difficult one. It’s vague and its boundaries are unclear. The courts tried to correct this fault in the 1990s case of Shimon Sheves, a director general of the Prime Minister’s Office, by stating that breach of trust happens when one of the following principles is harmed: the public’s trust in the government and proper administration, the integrity of public servants, and the proper functioning of government institutions. Whether the courts have ruled so or not, it’s clear that explicit breach-of-trust cases involve severe and clear-cut acts against the people.

Nowadays, power has shifted from the government to the wealthy. That’s why the main fear isn’t just of the rich buying politicians, but of politicians seeking to purchase the hearts of the wealthy by benefiting them at the public’s expense. The politician is “casting his bread upon the waters,” as it were, for the days when he’s out of office, or between terms.

It’s only the crime of breach of trust that can catch such acts, which are particularly damaging. In the reality of micro-corruption, of corrupt connections between the wealthy, politics and the media in which the powerful form secret alliances, the crime of breach of trust is an essential tool to protect democracy against those seeking to kill it.

Breach of trust doesn’t have the historical record that accepting bribes does, but it’s more appropriate than bribery in the fight against modern-day corruption, which is much more sophisticated and dangerous. This is corruption in which the quid pro quo of classic bribery pales in comparison to the favors traded today.

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