Analysis |

Prosecution Stumbles, but Netanyahu’s Bribery Trial Is Far From Over

There is no way of knowing what the price of this carelessness will be – but Netanyahu's trial, and the seesawing, look destined to drag out for a very long time

Gidi Weitz
Gidi Weitz
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Benjamin Netanyahu.
Benjamin Netanyahu. Credit: Reuters
Gidi Weitz
Gidi Weitz

The prosecution's request to amend Benjamin Netanyahu's indictment, by removing the date of the “instructional meeting,” was rejected on Tuesday – not great news for them. That was the meeting in which the prime minister presumably instructed Communications Ministry Director-General Shlomo Filber, now a state witness, to promote the business interests of Bezeq chief Shaul Elovitch. But notwithstanding that setback for the prosecution, it’s hard to explain the conduct of the main protagonists in the affair.

Anyone who reads the indictment and the evidentiary material in Case 4000 will realize immediately that the “instructional meeting” is no longer one scene in the plot, but the triggering event.

In the absence of instructions, it is hard to point to the motives for the protagonists’ subsequent conduct. On the one hand, there was the devotion of Filber to the interests of the Bezeq communications giant during several key moments, and his willingness to serve as a puppet in the hands of its heads. On the other was Elovitch’s increasing involvement in slanting coverage on the Walla website while demonstrating satisfaction with the “big guy” (Netanyahu) who is “going out of his way to help,” and with the “bulldozer” (Filber) who is “changing everything.”

In the absence of instructions, it is hard to explain why Netanyahu sent Filber, of all people, to present a study to Elovitch showing that the Walla opinion pieces were biased against the prime minister. It is hard to understand why, when he felt he was on shaky ground, Filber chose to turn to Elovitch, of all people, in an attempt to revoke the evil decree. During his police investigation, Filber explained that he understood the businessman had a “lever” over Sara Netanyahu, and that Sara had tremendous influence over the boss: “I realized that it could only be Shaul.”

In the absence of instructions, it is hard to think of a reason Filber agreed to accept dictates from Netanyahu’s communications adviser, Nir Hefetz, who came “from Balfour” or “from Jerusalem” for clandestine meetings under his house and whispered instructions to him regarding Elovitch’s interests, and not before the two put their phones aside. One could have expected Filber, who demonstrated great suspiciousness of Hefetz, to hasten to report to Netanyahu that his communications adviser was interfering in things that were none of his business, as he actually did in different circumstances. But Filber nodded and continued on his way. It seems that, as he understood it, the messages from Hefetz were the continuation of the instructions from Netanyahu, by other means.

These few examples only illuminate the carelessness demonstrated by the police and state prosecution when they specified the date of the instructional meeting in the indictment. They knew Netanyahu and masses of his supporters were convinced the indictment against him had been cooked up as a coup attempt. They knew the defendants would be equipped with a battery of skilled, experienced attorneys who would find every crack in the narrative the prosecutors constructed.

They knew the defendants’ followers would market every such crack as proof of the dark motives that guided the conspirators from the deep state. They knew that Filber’s backbone was not made of steel, and that his testimony in court would likely eat away at the meaty version he had given police, so that he could return to his home base in relative safety. The prosecutors knew – and they nevertheless failed the test, as the judges decided on Tuesday.

This embarrassment could have been prevented without particularly great effort: a few days of investigation devoted to studying the correspondence and journals and to pinpointing locations in Filber’s company, so as to try narrowing in on the most likely date of the meeting.

Conditions were playing into the hands of the system at the time. In the days after the agreement was signed with him, Filber was a different person from his familiar presence on Twitter and in the courtroom. It was evident he was aware of his crime and was making an effort to help his investigators. But they did not dwell on the potential trap involved, and the prosecution blindly went along with the timeline Filber insisted on, instead of pוcking relentlessly at this problematic point. “For the attorney general, the date of the instructional meeting was really not central to the consultations surrounding Case 4000,” someone who participated in the discussions told Haaretz. “We barely discussed it.”

The prosecution erred once again by failing to submit the amendment request earlier, when the doubts regarding the date of the meeting began to crop up and before the defense attorneys’ strategy was revealed. An amendment of the indictment at this stage, ruled the judges, would undermine the ability of the defendants to defend themselves. However, they left the prosecution a reason for hope by noting that a defendant can be convicted even on the basis of information not mentioned in the indictment, and even if that information contradicts the indictment.

While Tuesday’s decision certainly isn’t good news for the prosecution, it is also far from being the determining factor in the case’s fate. The trial will continue for a very long time, and the seesawing will apparently continue until the end. Last week prosecutor Yehudit Tirosh said there is additional evidence confirming the existence of the instructional meeting, and that the prosecution is still not convinced it didn’t take place in the time period stated in the indictment.

The defense, for its part, denies the existence of the instructions – although Filber, despite his tendency to give way under the defense’s cross-examination, has not retreated from his version. Last year the defendants made a diligent effort to normalize Filber’s favorable attitude towards Bezeq, which was described in the indictment as a deviation from the norm.

In effect, the laconic decision on Tuesday distills the question that will confront the judges at the end of the road: Did Filber enlist to help Bezeq because of Netanyahu’s instruction, as the prosecution argues, or did he act out of professional, practical considerations, as the defense maintains? The judgment on the instructional meeting is tied to the reply to this question – as is the judgment on the bribery charge.

For now there is no way of knowing what the price of the prosecution’s carelessness will be. If the judges have the impression that there is additional circumstantial evidence for the existence of the meeting, and reach the conclusion that there is no other explanation for the corrupt conduct in the Communications Ministry and in Walla, we can forecast with the necessary caution that they will consider the instructional meeting as an anchor in their decision. If they begin to have genuine doubts about the existence of the meeting and are convinced of the feasibility of the theory being presented by the defense, it will be as though the instruction never took place and the court will derive the necessary conclusions from that.

Recently the heads of Yitzhak Abergil’s crime syndicate were convicted on a series of murder and drug-dealing charges. The state witness in the case, who has been dubbed “Bombay” as his name and is under gag order, said that during the shiva for Abergil’s murdered brother, Abergil directed him to the murderers and demanded revenge. Then the defense pulled out a strong card, in an attempt to question the reliability of the witness and the prosecution: During the period of the shiva, it proved, Abergil was actually in South Africa.

Case 4000 is very different from the Abergil case, as is the importance of the “instructional meetings,” but it’s worth dwelling for a moment on what was written on this matter in the Abergil ruling: “The importance lies in the content of the things that were said, and not in pinpointing the date when it took place,” ruled the judges. “Such a conversation between Bombay and Abergil could ostensibly have taken place anywhere and at any time.” The panel reached this conclusion after taking an overview of the mosaic of evidence across the entire case. Likewise, the judges of the Jerusalem District Court will decide Case 4000 only after the entire picture is presented to them.

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