Democracy in Netanyahu's Israel Under Greater Threat Than in Trump's America, Warns Lawfare Editor

Benjamin Wittes, one of the most sought-after commentators on legal affairs in Trump-era America, says Benjamin Netanyahu could wreak a lot of damage on the legal system in a very short space of time

David Green
David B. Green
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President Donald Trump welcoming Prime Minister Benjamin Netanyahu to the White House in Washington, March 25, 2019.
President Donald Trump welcoming Prime Minister Benjamin Netanyahu to the White House in Washington, March 25, 2019.Credit: Manuel Balce Ceneta,AP
David Green
David B. Green

Benjamin Wittes has been warning Americans about Donald Trump since early 2016. If anything, his fears about the president have only intensified as his tenure has proceeded. Nonetheless, he sees Israel as being more vulnerable to its own leader’s machinations than the United States is from Trump. Whereas the U.S. will be rid of Trump one day with its legal institutions intact, Israel’s balance of powers may be left permanently off-kilter post-Benjamin Netanyahu, he believes.

If the name doesn’t ring a bell, it may be because you aren’t a devoted follower of inside-the-Beltway wonkery. If you were, you’d know that Wittes — editor-in-chief of the Lawfare blog — is one of the most sought-after commentators on legal affairs in Trump-era America. Even though he is not a lawyer. As a frequent visitor to Israel (Haaretz met him last week while he was participating in a conference at the Israel Democracy Institute) and amateur follower of its politics, he is well placed to do a comparative analysis.

Both Netanyahu and Trump, of course, are under investigation on a variety of criminal suspicions that could ultimately land each of them in prison. But it’s only Netanyahu who can change the rules of the game even as it’s being played, he explains.

Wittes notes that with a ruling coalition behind him — admittedly, a possibility that was put on hold once the Knesset voted to dissolve itself last week and hold a new election in September — the Israeli prime minister “can in relatively short order pass both an immunity bill,” which would shut down any possibility of indicting him, and the “override” bill that would deprive the High Court of Justice of the power to declare the immunity bill unconstitutional. “In other words,” he says, “Netanyahu proposes — and could actually implement — pretty dramatic changes to the legal system quite quickly.”

Wittes attributes this dramatic possibility to Israel’s anomalous constitutional regime, which he characterizes as “super-weird.”

U.S. President Donald Trump speaking to the media as he departs for London from Washington, June 2, 2019. Credit: JOSHUA ROBERTS/ REUTERS

Asked to elaborate, he explains in a follow-up email that, beyond the fact that Israel lacks a written constitution (which is not in itself unique), it also has “the combination, on the one hand, of a system of parliamentary supremacy, and, on the other hand, a highly aggressive court that asserts broad authority of judicial review.” Ironically, however, anything the High Court does can be reversed by the legislature, “given that the court’s authority itself is a creature of the Knesset.”

Wittes says he is unaware of any other system “in which the judiciary has been more aggressive while wielding less ultimate power.”

If Netanyahu had succeeded in cobbling together a coalition before time ran out last Wednesday, he might well have succeeded — virtually overnight — in passing both the immunity and override bills. “Such dramatic change is exceptionally difficult in the United States,” explains Wittes, “and would be struck down as unconstitutional were it passed legislatively.”

Comey’s wingman

Not long ago, Wittes, 49, was best known among a small but highly influential fraternity of people working in government, academia, the media and the legal profession on matters related to law and national security.

Benjamin Wittes speaking during a panel on “Democracy under Stress” at the Israel Democracy Institute in Jerusalem, May 2019.Credit: Noam Moskowitz

He grew up in New York and the Washington D.C. area, and, according to his Wikipedia biography, attended Jewish school — although when asked for details, he is quick to add that he quit day school after second grade. As for his current level of Jewish piety, a 2017 article in New York Magazine notes that Wittes, interviewed over lunch, dined on “a Diet Coke, four oysters and a bacon cheeseburger.”

He got his start as a journalist at what is now the National Law Journal, followed by a decade writing editorials on legal matters for the Washington Post. He moved to liberal D.C. think tank the Brookings Institution in 2006, and four years later co-founded the Lawfare blog. His wife, Tamara Cofman Wittes, a former official on Middle East policy at the State Department, is also a senior fellow at Brookings.

Wittes is anything but a radical. He supported the U.S.-led invasion of Iraq, the use of Guantanamo Bay Naval Base as an extraterritorial prison for security prisoners, and drone strikes against suspected Islamic terrorists. While he and Lawfare generally focus on matters related to national security, he would say that everything Trump says or does needs to be seen as a potential threat to national security.

Although he has generally written about the nexus of national security and the law, his objections to Trump revolve more around issues of character. In early 2016, for example, he wrote that “Never before in my lifetime has either political party been led by a man with such an unusual combination of — from a national security perspective, anyway — terrifying liabilities.”

Shortly after Trump’s inauguration in January 2017, when the president announced his first Muslim travel ban, Wittes described it as an example of “incompetent malevolence.” And after Trump fired then-FBI Director James Comey in May 2017, Wittes told one interviewer that “the only way to tyrant-proof the presidency is not to elect tyrants to the presidency.”

File photo of former FBI Director James Comey speaking during a Senate Intelligence Committee hearing on Capitol Hill, Washington, June 8, 2017.Credit: Andrew Harnik / AP

But it was perhaps the Comey affair that turned Wittes into the symbol of resistance he never aspired to be. He and Comey had been friends since the latter served as deputy attorney general (under George W. Bush). When Trump fired Comey, Wittes went public with some of the anecdotes he had heard about the president’s attempts to cozy up to the FBI chief and solicit his personal loyalty.

Suddenly, he became an interpreter of Comey for the public, while making it clear that Comey had never shared classified information with him. (The Lawfare blog, unlike more conventional media, has always had a policy of not publishing classified material.)

Pursuing the pursuers

Wittes has a methodical and precise way of organizing his remarks that makes them especially lucid and trustworthy. Often, for example, he divides his answers to a question into numbered lists, arranged by descending importance. (For an excellent summary of the published version of the Mueller Report, and a good demonstration of the clarity of his thinking, listen to Wittes’ conversation with Making Sense podcast host Sam Harris.)

Over lunch with him in Jerusalem (kosher, dairy), and during our subsequent email exchange, I pushed Wittes on the remarkably similar political scenarios unfolding in Israel and the United States. How, for example, do the roles of attorney general differ in the two countries? And how does Wittes, who always makes an effort to understand the point of view of even his adversaries, view both Trump and Netanyahu’s attacks on the “enemy media”?

He notes that whereas the U.S. attorney general “is a creature of a presidential administration, who is appointed by the president” and leaves office together with him, Israel’s AG “is imagined as independent of the prime ministership.”

File photo: Prime Minister Benjamin Netanyahu sitting in the Knesset in Jerusalem, May 30, 2019.Credit: \ RONEN ZVULUN/ REUTERS

It is true, Wittes says, that the U.S. Department of Justice is supposed to be “independent of the president in investigative matters — though not in policy matters — [but this] is a matter of developed norm over time, not of law or of constitutional structure. On this point, as Trump has shown, the American system is actually more vulnerable to abuse than is the Israeli system. Trump and Bibi, after all, both detested their attorneys general for allowing investigations of them. They also hated the heads of the relevant investigative agencies and regarded them as being on ‘witch hunts.’ One of them was able to fire the attorney general, and the head of the investigative agency in question. It wasn’t Bibi,” he adds, pointedly.

But while the American system “gives the president remarkable control within the executive branch … it doesn’t give the president the ability to pass laws,” Wittes continues. “The result is that Trump can tear the FBI apart, but he can’t pass laws easily to distort the legal system. By contrast, Bibi can’t easily get rid of [AG Avichai] Mendelblit, but he can pass an immunity law and disempower the Supreme Court if he can get a coalition together.”

Attorney General Avichai Mendelblit at the Bar-Ilan University law faculty in Ramat Gan, on November 28, 2018.Credit: Meged Gozani

He’s surprised by the extent to which new U.S. Attorney General William Barr — “Someone I have always had reason to admire and think well of” — has shown his willingness to pursue investigations of the various agencies that investigated Russian interference in the 2016 presidential election and possible collusion with the Trump campaign.

Reluctantly, Wittes has “come to the conclusion that the president wants the people who went after him gone after, and the Justice Department is, in a sophisticated fashion rather than in the crude fashion that the president tweets, been put at the service of that.” That doesn’t reflect well on William Barr, he believes.

Parallel battle lines

Wittes says he reads the English-language press coming out of Israel carefully, but doesn’t know enough Hebrew to be able to judge how fair local media are being toward the prime minister. That said, he does see obvious parallels between Netanyahu and Trump’s respective attitudes toward the press.

“In both countries, the elite press is — broadly speaking — part of the traditional elites each man positions himself against,” says Wittes. “In both countries, both men adopt an antagonistic posture toward the press, which in turn adopts a somewhat confrontational posture [to them].

Tamara Cofman Wittes, right, speaking at an Israel Policy Forum event alongside Jibril Rajoub and Michael Herzog in New York, April 2017.Credit: Debra Nussbaum Cohen

“In the United States, at least, the press is quite diverse — and ranges from scrupulously fair and careful to deeply partisan and reckless. And even reporters who are careful and scrupulous make mistakes,” he adds. “This combination is very convenient for Trump, as he gets to lump ‘the media’ into one giant basket of oppositional partisanship, errors and malice. I suspect that a similar effect may be taking place in the Israeli press’ relationship with Bibi.”

Wittes doesn’t want to comment on whether the Israeli press is fair to Netanyahu, but he’s certain that “Trump is definitely not getting a raw deal from the American press. He is getting exactly the deal he chose for himself. It was Trump who chose to lie consistently in his public statements — thus courting press scrutiny of his statements. It was Trump who chooses to campaign against the press. It was Trump who chooses to align himself with media outlets [that] praise him and attack those who do fact-based reporting on his conduct and his administration’s policies. And it was Trump who chose to behave in ways — like not releasing his tax returns — that guaranteed investigative press attention over periods of time. He has exactly the relationship with the press that is organic to his political personality.”

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