The prospect of resolving the three criminal cases against former Prime Minister Benjamin Netanyahu in a plea agreement shouldn’t be rejected out of hand. Like it or not, most criminal cases in Israel end in plea bargains, so there’s no reason why Netanyahu should be discriminated against.
His trial, now underway in Jerusalem District Court, is expected to be a protracted affair, which it is sapping the public’s interest. A plea bargain would cut the process short with a conviction and sentencing. It could even serve the public interest by having a defendant who has until now denied all guilt admitting in his own voice that he committed the offenses attributed to him. This is particularly the case when it comes to someone like Netanyahu, who had convinced many that he was innocent.
The devil is in the details. The two sides could fashion a reasonable plea agreement, but it’s also possible they will reach one that is scandalous.
A reasonable plea agreement serves the public interest in fighting government corruption and advancing the rule of law. It should be based on several criteria, one of which is the extent to which what Netanyahu admits to resembles what was contained in the original indictment and which the prosecution believes it could have proven in court. Any concessions the prosecution makes in the form of an amended indictment must be limited.
In this regard, it’s hard to swallow reports that the prosecution plans to drop Case 2000 over which evidence has not yet been presented. One of the three cases against Netanyahu, it involves allegations that he negotiated with Arnon Mozes, the publisher of the Yedioth Ahronoth daily, to grant the newspaper concessions in exchange for favorable coverage.
There’s no reason to rule out flexibility in amending the indictment in return for an admission of guilt. The former prime minister is charged with bribery, fraud and breach of trust, and the prospect, for example, of amending bribery to breach of trust should not be ruled out. But reducing charges is only tolerable if the overall constellation of facts is preserved. The prosecution is paying a heavy price by reducing the charges, so any other concessions need to be made with considerable restraint.
When it comes to sentencing, the punishment that the court metes out must be proportional to the crimes to which the defendant admits. It can be at the lower end of the range in return for the admission of guilt, but it has to be in keeping with the severity of his actions. An overly lenient punishment would render the plea agreement unacceptable.
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This aspect is particularly important when it comes to government corruption, because in the absence of a specific victim, it’s somewhat difficult to recognize the full severity of the crimes committed. Like other public officials suspected of such offenses, Netanyahu has sought to send the opposite message by minimizing or even denying the severity of his actions. If the public trivializes such conduct, it encourages corruption to flourish even more. An appropriate punishment is essential to send a message.
And when it comes to punishment, the details are important. It’s not entirely clear that any jail term of more than three months – which would disqualify the prime minister from running for the Knesset – should be served in its entirety in the form of community service. There’s a major difference between community service and actual prison time, and it’s not clear that former can always be commensurate with the severity of the charges in any final indictment.
In any event, consideration should be given to a suspended sentence, since, as in the case of former Interior Minister Arye Dery, Netanyahu could return to the political arena – or even to the criminal arena. And even that shouldn’t suffice. The former prime minister also must be given a fine heavy enough to impose real financial pain.
Once all of these criteria are weighed, the critical question is the message that a plea agreement sends when it comes to the fight against government corruption and equality before the law. In particular, because any such deal comes in the context of the dark shadow Netanyahu has cast over the case, the prosecutors making the decision must ask themselves how they would act if the case involved another public figure.
A plea bargain with Netanyahu must deal with two problems – one with wider social import and the other confined to him alone. The first is the deep moral failure from a societal standpoint when it comes to public figures accused of corruption. In Israel, unlike other properly run countries, there’s no intuitive understanding that such people have no place in public life. Any plea deal must ensure Netanyahu’s removal from public life for a considerable period, since the law does not authorize his permanent removal from public life and instead limits it to seven years. Any agreement that fails in this regard will only buttress the moral failure and disgrace the government, the legal system and public life.
A determination that Netanyahu’s acts constituted moral turpitude as a condition of his removal from public life is not a punishment. It’s a necessary by-product of the acts themselves and of the need to protect the public from corrupt people.
A finding of moral turpitude would disqualify Netanyahu from public office for seven years, but the stance that media reports have attributed to Attorney General Avichai Mendelblit, to the effect that moral turpitude is the main issue and that everything else really unimportant, would mean forgoing real punishment. That would undermine the fundamental principle of punishment, which should be commensurate with the severity of the crimes and the principle of equality before the law.
Netanyahu has distinguished himself for the worse by targeting the law enforcement system (or actually the state). He has engaged in an unprecedented delegitimization campaign and has inflicted severe damage on public trust in law enforcement. A plea agreement must not ignore this. Netanyahu must retract his claim that there was nothing to the cases against him and that the investigation and prosecution was politically motivated and rigged.
A plea agreement must also ensure that he doesn’t subsequently appear before the nation and claim that the plea bargain was forced on him against his will, that he actually hadn’t done a thing wrong and that the investigations were opened against him to remove him from power. Such a scenario is not imaginary.
Mendelblit has shown unfortunate leniency with Dery and former Labor Minister Haim Katz. As he nears the end of his term in office at the end of the month, it’s difficult to be confident that he will come to a reasonable plea deal with the former prime minister. Mendelblit was also Netanyahu’s cabinet secretary. It would be better to leave any plea deal to Mendelblit’s successor.