When I was last in Israel, to attend the opening of the U.S. embassy in Jerusalem, I was struck by how many challenges Prime Minister Benjamin Netanyahu faced and how he was dealing with them. In addition to the border clashes with Hamas, Syria and Lebanon, Netanyahu must confront Iran’s nuclear ambitions, the continuing impact of the U.S. decision to move its embassy to Jerusalem, the anticipated peace proposal being worked on in the White House, and the controversial basic law regarding Israel as the nation-state of the Jewish people.
Netanyahu is confronting these and more recent challenges – including domestic political ones – with his characteristic toughness, shrewdness and overriding concern for Israel’s security. Whether or not one agrees with Netanyahu’s politics, it is hard not to admire his efforts and results.
What is quite remarkable is that he is doing all of this while facing several criminal investigations. The issue at the center of these investigations seem trivial against the background of the existential crises Israel is facing, especially from an increasingly unstable Iran, determined to acquire a nuclear arsenal.
The first probe, also known as case 1000, involves gifts of cigars and champagne Netanyahu received from close friends. Everyone acknowledges that friends are permitted to give wine and cigars to friends, even if the recipient is the prime minister. The accusation is that Netanyahu took too many such gifts and made too many favors in return. But how many are too many? The law doesn’t say. It’s a matter of degree. But matters of degree should not be the basis for criminal prosecutions. The law should be clear — even quantitatively clear — so that everyone can know where the line is and not cross it. Today in Israel there is no bright line when it comes to gifts from friends. Nor are there unambiguous precedents. It’s a matter of prosecutorial discretion. No one should be charged with a crime unless he has willfully crossed a bright line and plainly violated a serious criminal statute. To bring down a duly elected prime minister on the basis of an expansive and unprecedented application of a broad and expandable criminal statute endangers democracy. I strongly believe that the appropriate criteria for criminal prosecution have not been met in the cigar and champagne case against Netanyahu.
The other investigations (dubbed 2000 and 4000) pose even greater dangers to democratic governance and civil liberties. The second probe includes conversations, recorded by a Netanyahu aide, between the prime minister and the publisher of an Israeli newspaper, while case 4000 focuses on Netanyahu's ties, when he was communications minister, to a telecoms mogul who controlled a major Israeli news site.
In both cases, the prime minister is essentially being investigated for allegedly trying to push the media – with long histories of attacking him and his family – to be fairer. The publisher of Yedioth Ahronoth, Arnon (Noni) Mozes, is being investigated for seeking the approval of legislation that would have curtailed his main competitor, Israel Hayom, a free daily backed by Sheldon Adelson. In the end, Netanyahu opposed the legislation, opting to go to early elections in 2014 rather than let it pass, and Mozes continued the criticism of him and his family.
In case 4000, Netanyahu is being investigated for seeking fairer coverage from the Walla news site, in exchange for supporting regulatory decisions made by civil servants.
So what we are left with is an exploration of motives: In the Yedioth case, did Mozes try to get the prime minister to support the legislation by promising to end or reduce the media attacks? Did Mozes believe that the prime minister would actually change his strong opposition to the legislation into strong support? Did Netanyahu really intend to change his opposition to support, or was he merely playing him, as politicians do? Did the prime minister actually believe that the publisher would change his long history of attacks into support? If Netanyahu believed he was doing something criminal by discussing these issues, why did he have his then chief of staff record the conversations in the Yedioth case and not erase the tapes?
In the Walla case, the questions are similar, involving speculation concerning the state of mind of the participants.
These are the kinds of questions that should be left to writers and readers in deciding for whom to vote and to which media to subscribe. They are not the kinds of questions that prosecutors and police should be empowered to ask elected officials and media moguls as a part of a criminal investigation.
The relationship between politics and the media – and between politicians and publishers – is too nuanced, subtle and complex to be subject to the heavy hand of criminal law.
Many votes by politicians are designed, in part – whether consciously or unconsciously – to garner favorable coverage from the media and to achieve other self-serving results. In many cases, a piece published by a reporter, editor or publisher is also calculated to some degree to promote self-interest – whether economic, political or career-related. To empower prosecutors to probe these mixed motivations is to empower them to exercise undemocratic control over crucial institutions of democracy.
Consider the proposed Israel Hayom law that is at the center of case 2000. More than 40 Knesset members supported the law, despite its obvious constitutional problems, about which I have written.
Did they all do so out of altruistic motives alone? Or did at least some of them allow the fear of negative or the prospect of positive coverage by Yedioth – the main beneficiary of the proposed law – to tip the scale in favor of their support? Should prosecutors and police be empowered to question under oath every member of the Knesset who supported the bill to probe his or her motives? Should they be empowered to question the journalists who subsequently published favorable reports about these supporters?
This is the “parade of horrible” that may follow from the current investigations of the prime minister and the publishers.
In the contemporary political climate, in which large media companies – whether it be Yedioth, Walla, The New York Times, Time-Warner, Bloomberg, Fox, Yahoo, Facebook or Google – do more than report the news, there will be more and more regulation of their activities by government.
These media companies will seek to influence the political discourse that affects their bottom line, as they simultaneously report on it.
In some instances, positive votes will be rewarded by positive coverage, negative votes by negative coverage. That is – and always has been and always will be – the nature of politics and its relationship to those institutions that report on it. “Scratch my back and I will scratch yours” is as Israeli as falafel and as American as apple pie.
Voters and readers have the right, perhaps the power, to promote more visibility and accountability from those for whom they vote and whose news they read or view. But police and prosecutors should not intrude on this complex, messy and nuanced relationship between politics and the media, except in cases of clear and unambiguous financial corruption well beyond what is alleged in the current cases.
So, let Netanyahu continue his important work. If Israelis don’t like what he is doing, they can vote against him. If they don’t like how particular newspapers or news sites are reporting, they can subscribe to different media. But to criminalize these political differences is to endanger democracy and freedom of the press.
Alan M. Dershowitz is the Felix Frankfurter Professor of Law, Emeritus at Harvard University and author of "Taking the Stand: My Life in the Law." Follow him on Twitter @AlanDersh.
Dershowitz has provided legal services to The Sands, a public corporation of which Sheldon Adelson and his family are the major shareholders. Adelson is also the founder of the Israeli newspaper Israel Hayom, controlled by a company owned by Adelson’s family.
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