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Same Same, but Extremely Different: Trump Impeachment vs. Netanyahu Indictment

Both leaders are attacking law enforcement to push back against their legal woes, but the comparison ignores important distinctions between them and between the Israeli and American legal systems

Amir Tibon
Amir Tibon
Meeting of Prime Minister Benjamin Netanyahu with U.S. President Donald Trump in Davos, Switzerland, July 25, 2019.
Meeting of Prime Minister Benjamin Netanyahu with U.S. President Donald Trump in Davos, Switzerland, July 25, 2019. Credit: Amos Ben Gershom / GPO
Amir Tibon
Amir Tibon

WASHINGTON — Ever since Israel’s Attorney General Avichai Mendelblit announced two weeks ago that Prime Minister Benjamin Netanyahu is being indicted in three corruption cases, both supporters and opponents of Netanyahu have compared his legal woes to those of U.S. President Donald Trump, who is facing impeachment hearings in Congress. The comparisons have been made in Israel and the U.S., by politicians and pundits, left-wing critics of the president and the prime minister, and from right-wing fans of both. But is there an accurate comparison to be made between these cases?

Senator Elizabeth Warren, who is seeking the 2020 Democratic nomination for president, said after the news of the indictment was published: “Netanyahu is accused of accepting bribes, trading government favors, and manipulating a free press. Like his pal Donald Trump, he’ll stop at nothing to enrich himself and stay in power.”

Days later, the pro-Trump Fox News network aired a segment denouncing the indictments against Netanyahu as a “coup” initiated by the so-called “deep state” in Israel and compared it to the impeachment process against Trump.

From a political standpoint, there are indeed some similarities, particularly between how Trump and Netanyahu have reacted to their legal circumstances. Both have chosen to respond by complaining about “fake news” and attacking law enforcement authorities, whether it’s the FBI in the U.S. or the police and prosecutors in Israel.

But aside from their similar political tactics, Netanyahu and Trump are actually facing very different situations. The comparison between their legal troubles may serve both of them and their opponents politically, but ignores important distinctions between the legal systems in each country.

Indictment vs. impeachment

The United States, unlike Israel, has a constitution. In the U.S. Constitution, there is a clear description of the impeachment process, which begins in the House of Representatives and moves on to a trial before the Senate. It says that a president can be removed from office if convicted by the Senate of treason, bribery or other “high crimes and misdemeanors.” A conviction requires a two-thirds majority in the Senate.

But the impeachment process in the United States rests on several principles that don’t exist in the Israeli system. First of all, the U.S. president is elected by the voters, and serves under a two-term limit. In Israel, the prime minister is not elected directly by the voters: Israelis vote for parties, not for specific candidates, and a prime minister is simply a member of the Knesset who, enjoys the support of a majority of other members. In addition, there are no term limits for prime ministers in Israel.

These factors create a very different legal situation in each country when it comes to alleged crimes committed by a national leader. In the U.S., a sitting president cannot be put on trial except through Congress; however, since there are term limits, it’s theoretically possible for a sitting president to face legal charges after the end of his or her term in the White House.

In addition, in the United States, Congress and the executive branch are two distinctively separate branches of government, which, at least on paper, are supposed to be equal in power. That’s not the case in Israel where the prime minister is always a lawmaker, and the governing coalition usually has a majority in the Knesset. In the United States, historically, it is common to have a situation where one party holds the White House and another holds a majority in at least one of the two chambers of Congress.

All of this leads to a situation where in the U.S., the only way to investigate, indict or remove a president from office is through a Congressional impeachment, and this framework is the result of a lengthy and detailed thought process led by the country’s founding leaders; whereas in Israel, a prime minister can be investigated and indicted by law enforcement and the courts like any other citizen.

Who are the investigators?

In his first response to his indictments, Netanyahu called for authorities to “investigate the investigators!”, adopting a line that was previously used by Trump. One of the American president’s preferred political tactics, whenever problematic and embarrassing details arise from the impeachment investigation, is to push back by calling for an investigation into his political rivals on the Democratic side – from former Vice President Joe Biden to the chairman of the House Intelligence Committee, Rep. Adam Schiff.

This tactic highlights another key difference between the U.S. president and the prime minister’s legal entanglements. The investigation against Trump, because of the nature of the impeachment process, is conducted, managed and handled by his political opponents. The same thing happened in previous impeachment investigations, such as the impeachment of President Bill Clinton in 1998.

In Israel, the situation is very different. The corruption investigations against Netanyahu, which have yielded three indictments, were handled by professional law enforcement officials, and the most senior among them were all personally chosen by Netanyahu for their jobs. This is true of former Police Commissioner Roni Alsheikh, who made most of his career in the Shin Bet security service, before his appointment by Netanyahu and Public Security Minister Gilad Erdan (a member of Netanyahu’s Likud party) as head of police; it’s also true of State Prosecutor Shai Nitzan, who Netanyahu described when he was appointed in 2015 as the best man for the job.

Mendelblit, the one who made the final decision to indict Netanyahu, was Netanyahu’s preferred candidate for the attorney general position, whose previous job was senior adviser to the prime minister. Throughout the investigations against Netanyahu, Mendelblit was routinely criticized by Netanyahu’s political opponents for dragging out the investigation for too long, and accused of giving Netanyahu favorable treatment compared to other politicians who faced criminal investigations while in office.

When Trump describes the investigations against him as motivated by politics, it is more difficult to contradict his argument: no matter what a person thinks about the evidence against the president, it is factually correct that because of how the system in the U.S. works, Trump is being investigated and may also wind up being put on trial by his political opponents. For Netanyahu, however, this argument makes very little sense – the people who were in charge of his investigations and made the decision to take him to court, were all chosen by him for their jobs, and are not known to have any political agenda against him or his party.

What is the political impact?

Netanyahu’s legal troubles have created an unprecedented political crisis in Israel, which has been operating without an elected government for a year now. Netanyahu has failed twice to form a government in two consecutive elections held in April and September, mostly because of a right-wing split over religious issues, but in part because no center-left party has agreed to join a coalition led by an indicted prime minister. As this article goes to print, it seems close to inevitable that Israel will hold a third election in less than a year.

In the United States, meanwhile, the impeachment process isn’t likely to have that kind of effect on the 2020 presidential election, which will take place in November. Trump will almost certainly remain in office even if the House impeaches him, because there will not be a majority of two-thirds in the Republican-controlled Senate, to convict and remove him from office. Republicans hold 53 seats in the Senate, and the notion that 20 of them will join the chamber’s 47 Democrats and vote to end Trump’s presidency is beyond fictional.

This means that Trump will stand for reelection in November as the Republican nominee, and it will be left to voters in the swing states across America to determine whether or not the corruption allegations against him, arising from the impeachment process, are worthy of making him a one-term president.

Will there be a trial? How likely is a conviction?

For Trump, there are very clear answers to both questions. It’s almost certain there will be a majority in the House of Representatives to impeach him, and that the Republicans in the Senate, despite their small majority in that chamber, won’t be able to block a trial against the president. However, the likelihood of a conviction is very low: so far, the Republican party’s reaction to the impeachment process has been to coalesce around Trump and attack the Democratic party.

In Israel, things are more complicated. The indictment against Netanyahu has been handed by the attorney general to the Knesset. Under Israeli law, Netanyahu has the right to ask the Knesset to provide him with legal immunity.

However, because no government has been sworn in since the last election, the Knesset currently has no permanent committees, and this means a vote on Netanyahu’s immunity cannot be held. If Israel indeed holds a third election, which would likely take place in March, it will be technically impossible for Netanyahu to seek immunity, and for the Knesset to vote on such a request. Any discussion of the issue will only become possible after the next election.

Netanyahu’s goal in a third election will be to secure a 61 seat majority for the parties that support granting him immunity from trial – basically, Likud and all the religious parties. This was also his goal in the last election, in September, during which his “bloc” of parties received 55 seats of the Knesset’s 120 seats, not enough to grant him immunity. If he succeeds in the next poll, it’s possible the Knesset will shield him from trial; if not, he will have no choice but to defend himself in court.

The trial’s outcome will be up to three judges on the Jerusalem Magistrate Court’s bench who will be in charge of the case. Any decision will most likely be appealed and heard by Israel’s Supreme Court.

What are the allegations?

Both Trump and Netanyahu are facing allegations about actions they took while serving in office.

Trump is accused of putting pressure on Ukraine to open a politically-motivated investigation against his political rival, former Vice President Joe Biden, and his son Hunter Biden who had conducted business in Ukraine. Biden is seen as a prime contender to win the 2020 Democratic nomination. Trump, according to the Democrats’ impeachment report released this week, used American military aid to Ukraine as “leverage” to try and persuade the government in Kyiv to announce an investigation into the Bidens. Thus, he allegedly asked a foreign government to interfere in the 2020 U.S. election on his behalf, and withheld military aid that was vital for that country because of a threat it faces from Russia.

Trump says he did not condition the aid on any action by Ukraine against the Bidens, and that his demand for an investigation against the Bidens was out of concern for potential corruption. This claim has been contradicted by several witnesses from within the U.S. administration speaking before the House Intelligence Committee in recent weeks.

The Democrats in the House are weighing whether to include in the impeachment articles against Trump several incidents of potential obstruction of justice that were described in the Mueller report on Russia’s intervention in the 2016 election. Mueller did not present a clear judgement on whether or not Trump committed an obstruction of justice, because of the legal framework in the U.S. that leaves any decision on the indictment of a sitting president solely in the hands of Congress.

Netanyahu, meanwhile, has been indicted in three separate corruption charges, which the Israel Police have code-named as Case 1000, Case 2000 and Case 4000.

In case 1000 Netanyahu has been indicted for fraud and breach of trust, for accepting gifts worth hundreds of thousands of dollars from billionaires while he was prime minister, for not disclosing the existence of those gifts to state authorities, and for using his power as prime minister to try and promote the interests of at least one billionaire who showered him with jewelry, cigars and pink Champaign.

In case 2000 Netanyahu has been indicted for fraud and breach of trust, in this case for allegedly negotiating a bribe deal with Arnon Mozes, an influential tycoon and owner of the popular newspaper Yediot Aharonot. Mozes, who has been indicted for bribery, offered Netanyahu a bribe deal in which the prime minister would use his powers to help Mozes’ business interests, and in return Mozes would make his influential media empire supportive of Netanyahu, helping him secure reelection.

In the bribe negotiations, recorded on the phone of one of Netanyahu’s closest aides, Mozes and Netanyahu were heard discussing this kind of deal as something they had already previously done before Israeli elections held in 2009 and 2013.

In case 4000, Netanyahu is accused of bribery, fraud and breach of trust, for allegedly concocting a bribe deal with Shaul Elovitch, an Israeli billionaire who had previously owned Bezeq, Israel’s largest telecommunications company. The alleged bribery deal was close in nature to the one between Netanyahu and Mozes. Elovitch, who is also indicted for bribery, allegedly turned the popular news website owned by Bezeq, Walla News, into a propaganda arm for Netanyahu. In return, Netanyahu – who after the 2015 election, appointed himself communications minister – promoted regulatory decisions worth hundreds of millions of dollars to Elovitch.

What is the worst possible scenario for each leader?

For Trump, the impeachment process will likely have no immediate effect in the next few months. The biggest question is whether or not it will hurt his chances for reelection in November. If Trump loses the vote, he would lose the legal protections that come with the presidency, and could potentially be indicted and face trial for actions unrelated to Ukraine, such as a hush money scandal involving porn actress Stormy Daniels. However, historically there has never been a situation in the U.S. in which a former president was put on trial.

For Netanyahu, the risks at the moment are much greater. If he fails to obtain immunity from the Knesset, he will have to go to trial and if convicted, he could end up in jail, just like his predecessor, Ehud Olmert.

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