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Is Netanyahu Seeking Immunity From Indictment, and What Are His Options

Netanyahu shares articles favoring law to prevent charges against him, but his own party's lawmakers profess they're in the dark about his intentions

Prime Minister Benjamin Netanyahu greets supporters at a Likud event in Jerusalem, April 16, 2019.
Emil Salman

No one who has been following Prime Minister Benjamin Netanyahu’s Facebook page this week could help wondering whether he’s openly campaigning for a law that would give him immunity from prosecution. Since the start of the week, he has shared two articles favoring immunity – one published in Israel Hayom by regular columnist Haim Shine and one published in Yedioth Ahronoth by former justice minister Daniel Friedmann.

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What is Netanyahu’s position with regard to immunity?

Knesset members from Netanyahu’s Likud aren’t sure whether he actually wants to pass legislation that would protect him from standing trial, or whether he plans to run the country while standing trial. They also aren’t sure whether a new immunity law is actually needed, even if he does want to avoid a trial.

Netanyahu said that he believed the indictment would be revoked after a hearing. However, in interviews he gave before the election he refused to reject out of hand the possibility that he would allow the legislation of a law that would prevent his indictment.

In an interview to TV Channel 12 he was asked about such a law, replying that “I haven’t dealt with that issue and don’t plan on dealing with it. The fact is that my associates raised this possibility and I rejected that. I believe I won’t pursue such a course.” In other interviews he also refused to make any commitment on this topic.

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What are the options?

The main idea Likud MKs are considering is reinstating the parliamentary immunity law that existed until 2005. Under that law, every minister and MK automatically had immunity from prosecution unless the Knesset voted to lift his immunity. The new law passed in 2005 reversed the situation, so that any minister or MK could be indicted unless the Knesset voted to grant him immunity.

This amendment would apply to incumbent office holders who are already under investigation, including Arye Dery (Shas), Haim Katz and David Bitan (Likud). 

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“This change isn’t so drastic, to tell the truth,” said Likud MK Miki Zohar, who tried to promote legislation to restore the status quo ante in the last Knesset but was prevented by Netanyahu from doing so. “If there’s a majority that would oppose removing immunity, there’s also a majority that would support granting immunity. But from a public standpoint, the situation is a bit different. When you request immunity, that’s completely different from a situation in which they have to ask you to remove it,” said Zohar.

In fact, former Meretz chairwoman Zehava Galon objected to the 2005 law for that very reason, arguing that it could allow the Knesset to prevent an MK from being prosecuted for bribery.

Zohar said he would submit legislation to restore the status quo ante only if Netanyahu gives him the green light. “I believe in this law, but ultimately, it needs his consent,” he explained. “And to date, the prime minister hasn’t said he’s interested in this.”

Bribery charges, he insisted, should only be filed if a politician received money, which he said Netanyahu hadn’t. “This situation is about relations between media outlets and politicians,” he said. “There’s never been a case in which suspicions were raised against a politician when there was no bribe or money, but just ‘give me and I’ll give you.’”

MK Bezalel Smotrich of the Union of Right-Wing Parties has already said he plans to introduce a bill to restore the status quo ante.

“In recent years, we’ve gotten a little mixed up,” he said last month. “We treat every public representative as a potential criminal and castrate Knesset members’ ability to do their jobs in an optimal fashion. The immunity law isn’t meant to prevent justice from being meted out to public representatives who went astray, but to let Knesset members supervise the work of the executive branch without fear of made-up cases or political persecution by means of pointless complaints and endless investigations.

“When I weigh respect for the democratic decision, for the people’s will, against gifts and deals for favorable coverage from Walla, I have no doubt that the need to let the person who received the public’s trust run state affairs in an optimal manner, without being preoccupied with conducting a personal trial, takes precedence,” he added.

Shine’s article also argued that an indictment would overturn the will of the voters, a majority of whom “voiced no confidence in the law enforcement agencies” in the recent election. Friedmann argued that immunity “would guarantee the prime minister freedom of action in appointing a suitable justice minister and dealing with the malfunctions in the legal system.”

But some Likud MKs argue that Netanyahu could obtain immunity even under the current law. Aside from granting blanket immunity for anything an MK does “in the course of doing his job or for the sake of doing his job,” it also allows the Knesset to grant an MK immunity for the sake of preventing “real harm … to the Knesset’s functioning … or to the voting public’s representation,” after considering the severity and circumstances of the alleged crime. Since the law doesn’t specify what might make a crime too serious to justify granting immunity, this is open to legal interpretation.

Can a law be applied retroactively?

The Attorney General announced that he would submit an indictment against Netanyahu, subject to a hearing, which has not taken place yet. Thus, a law that precludes his prosecution would not be considered a retroactive law, as long as it’s passed before the hearing and a final decision by the AG. This is in contrast to the so-called “French Law” which several Knesset members tried to promote in the outgoing Knesset. That law would have precluded any investigation of Netanyahu.

What is the position of different parties?

MK Moshe Gafni (United Torah Judaism) said last month, in a radio interview to the Kan Bet station, that his party would consider supporting a law that would prevent Netanyahu’s indictment. “If the issues are economic ones that are not that significant, one should consider it” he said. Shas chairman Dery and Yisrael Beiteinu chairman Avigdor Lieberman are expected to support such legislation as well.

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Kulanu’s position is unclear at this point. On the eve of the election Kulanu opposed legislation that would have blocked Netanyahu’s indictment. Party chairman Kahlon said that he couldn’t imagine the prime minister continuing to serve after being indicted, but Kulanu may now be integrated into the Likud and it’s unclear how that would affect its positions.

Meretz chairman Tamar Zandberg turned to Attorney General Mendelblit this week, demanding that he forbid Netanyahu from including these issues in his talks on forming a coalition. She said that this would constitute “an unallowable and prohibited kind of deal, which amounts to breach of trust, since it significantly harms the public interest.” Kahol Lavan, the Labor Party, the United Arab List-Balad and Hadash-Ta’al have announced that they would oppose such legislation.

What does the Likud say?

In addition to Zohar, coalition head MK David Amsalem supports legislation that would prevent Netanyahu’s prosecution, but a few other MKs and cabinet members have expressed opposition to this. Public Security Minister Gilad Erdan said two weeks ago in an interview to Army Radio that he opposes such legislation. “He committed to not trying” he said in reference to Netanyahu. “If such an initiative was brought up by others, I’ll oppose it.” The day after the election, Knesset Speaker Yuli Edelstein told Army Radio that such a law was unfeasible. Gideon Sa’ar also told Army Radio before the election that he opposes a law that would grant Netanyahu immunity.