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Immunity or Trial? What Happens After Netanyahu Asks for Protection From Prosecution

Jonathan Lis
Jonathan Lis
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Netanyahu during a Hanukkah event in Tel Aviv, December 29, 2019.
Netanyahu during a Hanukkah event in Tel Aviv, December 29, 2019.Credit: Tomer Appelbaum
Jonathan Lis
Jonathan Lis

Prime Minister Benjamin Netanyahu has announced Wednesday he is requesting immunity from prosecution in the three bribery, fraud and breach of trust cases against him.

Netanyahu this past week was continuing efforts to win greater public support for the request, even calling immunity a “cornerstone of democracy”. Can he really obtain it? What happens if he doesn't? These are the main issues Israel's legal system now faces. 

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Is immunity really a 'cornerstone of democracy?'

The immunity process for Knesset members is a part of the Basic Law on the Knesset, and further details about it are laid out in additional legislation known as the Immunity Law. In principle, immunity is intended to help lamwakers do their jobs – under certain circumstances – even if they have violated the law. It is doubtful that Netanyahu’s legal situation and the harsh indictments against him all meet the criteria set by the law to provide him with an exceptional safety net against standing trial on corruption charges.

Why is Netanyahu planning to submit his immunity request now?

MKs are not entitled to automatic immunity from prosecution, as they were in the past, in accordance with an amendment to the law passed in 2005. But the law does entitle a lawmaker to request immunity, within 30 days of when the attorney general officially informs the Knesset speaker of his intentions to indict the lawmaker.

Attorney General Avichai Mendelblit informed Edelstein of the indictments he was submitting against Netanyahu on December 2, and if Netanyahu does not request immunity by Wednesday night, the indictments will be filed with the court and he will face trial.

Is Netanyahu entitled to immunity?

The law provides four justifications for freezing legal proceedings: If the crime was committed as part of the lawmaker carrying out their job; if the indictment is submitted not in good faith or in a discriminatory fashion; if the crime is committed inside the Knesset and the legislature has taken its own internal steps action on the matter; or if the results of a criminal process would infringe upon the ability of the Knesset or its committees to execute their functions.

In recent months, Netanyahu and his aides have been running a campaign in which they accuse the police and prosecutors of selective enforcement of the law, insisting that this has involved ignoring similar suspicions against other MKs, especially in the realm of relations with the media. This campaign could very well demonstrate that Netanyahu will focus on justifying his case by complaining of discrimination when he tries to convince Knesset members to grant him immunity.

What are the chances the Knesset will grant him immunity?

Whether Netanyahu meets the criteria for receiving immunity or not, the Knesset vote on the issue will be political. His supporters are expected to stand by his side, while his opponents will most likely vote against immunity – regardless of the findings placed before them in the Knesset House Committee and the plenum.

Netanyahu does not have the support of a majority of the 120 MKs to receive immunity, since lawmaker Avigdor Lieberman, the chairman of the Yisrael Beiteinu party, has hinted that his party will not support immunity. But in any case the debate over whether or not to grant Netanyahu immunity can be expected to be held only once the next Knesset convenes following a March 2 election, so the number of potential supporters for immunity is still an unknown. In addition, any decision made by the Knesset can be expected to be challenged in the High Court of Justice.

Why won’t the vote on immunity be held before the next election?

The only Knesset committee with the authority to decide on matters of immunity is the House Committee – but this committee was never formed after the last two elections, held in April and September, due to the political standoff. Netanyahu rival Benny Gantz's Kahol Lavan party has examined the possibility of setting up a permanent committee to hear requests for immunity, if any such requests are submitted in the next few weeks. But the objections of Likud and Yisrael Beiteinu seem to have upended this idea, for now.

The Knesset is not expected to name a new House Committee until after the coming election, so the debate over immunity can be expected to be postponed for a months, at the very least. If a new government is not formed after the March election, either, then the discussion of Netanyahu’s immunity could be put off for a much longer time. The indictments cannot officially be filed with the courts until the House Committee completes its handling of the immunity request.

So when will the trial begin?

The immunity process, a necessary step before beginning a trial, could take quite a long time. The legal process in court will only begin after the Knesset completes its handling of the immunity request – and any of the expected appeals to the High Court on matter. In addition, it will be possible to delay the legal process by means of various legal moves, such as requests for evidentiary discovery. If the State Prosecutor’s Office refuses to hand over the requested materials, this too could have to be adjudicated in a separate proceeding. The greater the defendant’s interest in delaying the trial, the longer the process could take – and discovery requests could take up to a year.

What has Netanyahu said so far about the possibility he will request immunity?

Netanyahu may have said that “immunity is a cornerstone of democracy,” but during the two previous elections campaigns in the past year he has publicly belittled the possibility he would ask for immunity – and once he even staunchly denied he would request it.

In an interview with Channel 12 News before April's election, Netanyahu was asked if he would try to advance a law, or any other step, to avert being put on trial. He said of course he wouldn’t do so, adding that what would put an end to any possibility of a trial were “the facts themselves.”

When the interviewer pressed him further, asking whether he unequivocally promised that neither he nor any one of his close supporters would act to prevent him from facing trial, Netanyahu said: “I don’t know, I haven’t dealt with that. This is the first time someone has asked me and I haven’t thought [about it]. I haven’t done so and therefore I don’t think I’ll do it. I believe that I won’t do it.”

Can Netanyahu become prime minister, even if the president does not confer on him the task of forming a new government?

The surprising answer is yes, under certain circumstances. Seemingly, the key to forming the next government is in the hands of President Reuven Rivlin. The letter of the law does not limit his authority to ask a candidate who is under indictment to form a new government. But Rivlin could decide that this would be improper ethically, and grant a different candidate the task of forming a government. The justices of the High Court or an official legal opinion could also possibly prevent Netanyahu from becoming a candidate to establish a new government, saying such a step is flawed legally.

Nonetheless, Netanyahu’s lawyers have made it clear in a brief they submitted to the High Court of Justice that the president cannot be prevented from asking Netanyahu to form a government, because he could wind up winning a mandate to form a government no matter how many votes his Likud party wins in March. What they were hinting at was that Netanyahu could potentially recruit a coalition of 61 MKs to support a different, straw candidate to the president. A few days after a new government is sworn in under the straw candidate, Likud could introduce a no-confidence motion resolution against the new government, which under the law would include a vote of support for an alternative government.

In such a case, Likud could present an alternative government headed by Netanyahu, in spite of the indictments against him, and he would become prime minister after a vote is held. In such a case, the final decision as to the legality of Netanyahu’s reappointment as prime minister would likely still be in the High Court's hands.

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