Over the past few days, in the run-up to the expected completion of the police’s investigation into Prime Minister Benjamin Netanyahu in the lavish-gifts affair and the transfer of their findings to the prosecution, reporters and pundits have provided a steady drip of claims that this is a “borderline" case, somewhere between fraud and breach of trust and behavior that’s “unaesthetic” but not criminal. This drip might be the result of deliberate briefings by the Justice Ministry in an attempt to lower expectations in advance of what are expected to be grave recommendations by the police.
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Let's be clear: The police investigation produced evidence not only that businessmen Arnon Milchan and James Packer gave Netanyahu gifts and other benefits, but also that Netanyahu provided a quid pro quo, at least to Milchan.
Obviously, at this stage, the public is being fed only partial and indirect information. The full picture of the evidence gathered in the case is in the hands of the investigators, the prosecution and Attorney General Avichai Mendelblit, who will ultimately have to decide whether to indict the prime minister. Still, even the evidence about which there’s no dispute paints a clear picture of bribery.
According to this evidence, in exchange for regular supplies of high-class champagne and cigars, Netanyahu gave Milchan at least three quid pro quos. He helped Milchan renew his long-term U.S. visa, taking the unusual step of appealing directly to then-Secretary of State John Kerry (who isn’t even the right address for this issue). He met, at Milchan’s request, with Indian billionaire Ratan Tata about a venture to set up a car plant in the Jordan Valley. And he was behind breaks given to Channel 10 television when Milchan was one of its owners.
To this we should add a fourth kind of quid pro quo that Netanyahu provided in exchange for Milchan’s gifts: Milchan had free access to Netanyahu, both at the Prime Minister’s Office and at his private residence, and that’s something of great value to some businessmen. A man who has the promise of an open door to the prime minister can trade on his influence in high places, either to arrange huge business deals or through “consultancy fees,” as attorney Isaac Molho is suspected of doing in another case involving alleged corruption in the navy’s purchase of ships and submarines.
That access to key government officials and the ability to influence their decisions can be an element of a quid pro quo relationship has long been part of other countries’ discussion of the laws of bribery. In Israel, serious thought about this issue is still in its infancy. But reality, it seems, is way ahead of the academic debate.
In an earlier case involving corruption at the Israel Tax Authority, the court ruled that the very appointment of Jacky Matza as the agency’s head was a kind of gift to him, and the access he provided to businessmen close to Shula Zaken – herself a close associate of then-Prime Minister Ehud Olmert – was a quid pro quo. These same characteristics of “access” and “an open door” as the quid pro quo in a bribery case could be seen in the Holyland corruption case.
In other words, we aren’t talking about gifts but about illicit benefits, and we aren’t talking about a “friendship” but about an open door to the prime minister – a tradable currency whose value can be set in monetary terms like any other tradable good. That’s the way it was in Russia in the waning days of Boris Yeltsin’s presidency, when his associates sold free hours on the leader’s schedule in exchange for deposits in their foreign bank accounts.
In the moments before the storm of political spin overtakes us, we ought to remember that the evidence in Case 1000 – the lavish-gifts affair – isn’t borderline, nor is it just a matter of fraud and breach of trust (though it includes these crimes). The evidence indicates, prima facie, that the prime minister took bribes.