In nearly every discussion these days about a possible plea bargain with the defendant Benjamin Netanyahu, supporters of a compromise repeat the same main argument: The deal with the former prime minister is necessary in order to undermine his attack on the justice system. This argument was made most prominently by former Supreme Court President Aharon Barak, who explained that he supported the deal because it would “take the sting out of the demolition of the court system.”
In other words, Barak and others believe that any admission by Netanyahu in the context of a plea bargain, even if only to some of the charges, will repudiate his accusations over the past few years regarding the lies and failures of “the system” – the police, the state prosecution, the attorney general and the courts. For “the system” (any “system”), it will always be the deepest, most powerful instinct – to protect itself and all of its parts.
Protecting the credibility and reputation of the justice system, Barak argued in a series of interviews, is “such an important and dramatic thing that it tips the scales.” Those who believe in the overriding interest of “the system” to defend itself often also proclaim the importance of defending “the unity of the nation.” Or, as Barak put it, “In attempting to mend the rift in the nation, a plea bargain may be justified.” Barak also chimed in as a character witness for the defendant, bolstering his argument that a plea bargain is appropriate: As Barak put it, until his trial, Netanyahu was “one of the greatest defenders of the Israeli justice system.”
So, let me see if I have this straight: Since Netanyahu once defended the system (Just what does “defend” mean anyway? That he didn’t infringe on the authorities of the judicial branch, one of the foundations of democracy? Someone should really send him flowers), and the system’s supreme interest is defending the system, which basically amounts to defending the nation’s unity, i.e., defending all of us – then of course a plea bargain must be signed!
There’s just one problem with this narrative, which has been gaining traction among those who blindly defend our common institutions and the nation’s imaginary unity: What do all of these arguments about the public interest, as fine as they may be, have to do with a plea bargain? Whether or not Netanyahu defended a public body, and despite the public interest of having broad trust in law enforcement and the courts – that is irrelevant to the issue at hand.
A plea bargain is a legal instrument for use in a specific case, involving a specific person, whose main purpose is to save the state time and resources. The severity of the crime and the interest in punishment are balanced against the headache of the proceedings. And in the case of the Netanyahu trial, the saved time and resources, to paraphrase Justice Barak, are negligible in terms of the extent to which they tip the scales. A plea bargain is not a public or political instrument for a “system” to use to defend or not defend its name, good or otherwise. It has nothing to do with that. Nor does guarding the “nation’s unity” fall under the justice system’s mandate. These are not legal considerations.
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If the system wants to prove its credibility, let it do so in court. And if it is in such a rush to compromise, then “the system” is also trying to evade trial, just like Netanyahu, in what appears to be an admission on its part, too, to some of the charges against it. If there is solid evidence of corruption against the former prime minister, it must be properly and thoroughly examined. And if there are flaws in the case, they should be properly and thoroughly clarified too. This is the true public interest.