Australia/Israel Review


A Bibi plea bargain?

Feb 3, 2022 | Amotz Asa-El

Binyamin and Sara Netanyahu: Said to be considering their options (Credit: IGPO/ Ashernet)
Binyamin and Sara Netanyahu: Said to be considering their options (Credit: IGPO/ Ashernet)

Israel’s Netanyahu era – more than a quarter-century of drama, achievement and controversy – may soon end if plea-bargain negotiations between the prosecution and Israel’s most famous defendant mature.

Reports of indirect negotiations between Attorney-General Avichai Mandelblit and Binyamin Netanyahu have been confirmed by former Supreme Court President Aharon Barak, who mediated between the two. At the time of writing, the deal appears stalled following criticism that it is too generous to Netanyahu, but it remains possible that it will ultimately materialise. If so, it will likely unsettle Israel’s political system. 

Netanyahu, now Leader of the Opposition and before that Israel’s longest-serving prime minister, has been facing court in the wake of indictments in three cases. 

The first is about receipt of ~US$200,000 (A$279,000) worth of illegal gifts, cumulatively over five years, from Hollywood producer Arnon Milchan and Australian gambling kingpin James Packer. The second case is about an alleged abortive deal with the publisher of the mass-circulation daily newspaper Yediot Aharonot involving favourable coverage of Netanyahu in return for policy changes that would hurt a key Yediot competitor. The third case is about alleged regulatory favouritism to telecom giant Bezeq in return for favourable coverage of Netanyahu on a news website owned by Bezeq’s owner at that time. 

In court, Netanyahu has flatly denied all allegations, in line with his repeated public statement about the cases against him: “there will be nothing because there was nothing.” In the plea bargain talks, however, he has reportedly agreed to admit to most of the charges he currently faces. 

The plea bargain would reportedly leave intact the first case, drop the second case entirely, and in the third case, remove the most serious charge of bribery. Netanyahu would plead guilty to charges of fraud and breach of trust, and promise to retire from politics for at least seven years. In return, prosecutors would recommend his punishment be community service of less than one year, instead of the jail term, potentially of several years, he would have likely faced if convicted. 

Most controversially, the deal was originally to refrain from explicitly convicting Netanyahu of crimes of “moral turpitude”, leaving that aspect of the case to a court’s decision. Israel’s Basic Law: The Knesset disqualifies a person from election to public office for seven years after completion of a sentence for a crime involving “moral turpitude”.

News of the plea deal negotiations sparked a heated public debate in Israel. “The Netanyahu trial is a disaster for Israeli solidarity,” wrote law professor Yedidya Stern of Bar-Ilan University in the Jerusalem Post. Arguing that the trial has become “a maelstrom that is sweeping Israeli society into a deep abyss” he backed the deal, calling it “the least bad option.”

It was the same line that Justice Barak voiced, saying that the plea bargain he helped broker would “heal the national rift that the trial has caused.” 

Others, however, viewed the deal as a sham that would not only whitewash severe abuses of power, but also ignore Netanyahu’s verbal attacks on the judiciary and his allegations that a cabal of investigators, prosecutors, judges and journalists had conspired to unseat him. 

“Netanyahu’s campaign created a reality that deprives both sides of a plea bargain’s moral basis,” wrote one of Israel’s most influential journalists, Nahum Barnea, in Yediot Aharonot. Barnea’s view was shared by a battery of other pundits. 

Whether because of this criticism’s impact or not, Mandelblit reportedly stiffened his line. “It would be inconceivable to have a deal without ‘moral turpitude’,” Mandelblit’s deputy, Shlomo Lemberger, said in a speech to the Israel Bar Association. 

Mandelblit’s six-year term is set to expire in the first week of February, and his successor, who has yet to be selected, will only assume office a month later, with State Attorney Amit Isman temporarily filling the post in the interim. Mandelblit was reportedly eager to end his term with the Netanyahu case sealed, but at press time, chances of the deal being finalised before his departure seemed slim. 

At the same time, a plea bargain remains likely, as both sides’ interest in a deal has become clear. Whatever a prospective deal’s exact terms, its repercussions would be potentially far-reaching in both the short and longer term. 

 

In the short term, a plea-bargain announcement would throw Israel’s political system into a tizzy, because it would abruptly remove from the arena the man who has dominated it since 2009. 

Such a departure would first of all require that the Likud, Israel’s largest political party, elect a successor for Netanyahu, the party’s head for the past 17 years, as well as another seven years back in the 1990s. 

Jockeying to replace Netanyahu as Likud leader is already underway, involving at least seven candidates – most notably Yisrael Katz, a former minister for transport, finance and foreign affairs; Yuli Edelstein, a former speaker of the Knesset and minister for health; and Nir Barkat, a former mayor of Jerusalem. 

Likud elects its leaders in a primary election involving some 120,000 party members, a process that would take an estimated three months to organise and complete. Until that process can be completed, Likud’s 3,700-member Central Committee would appoint an interim party leader who would immediately succeed Netanyahu as Israel’s Leader of the Opposition. 

But this would not be strictly Likud’s internal affair – because Netanyahu’s replacement might in fact also result in the downfall and replacement of Israel’s current Government, led by PM Naftali Bennett and Foreign Minister Yair Lapid. 

The current coalition is an ideologically eclectic confederation of eight parties with a razor-thin parliamentary majority that would not have come into being if not for Netanyahu’s indictment and subsequent insistence on continuing to lead the Israeli right despite his legal troubles. 

Three of the current Government’s parties are right-wing, including Prime Minister Naftali Bennett’s Yamina (“Rightward”) and Justice Minister Gideon Sa’ar’s New Hope. 

The formation of Israel’s ideologically diverse current government was driven mainly by a shared desire to keep Netanyahu out of the premiership. What happens if he leaves the political scene? (Source: IGPO/ Flickr)

Bennett, Sa’ar, and Finance Minister Avigdor Lieberman, who heads the Yisrael Beitenu (“Israel is Our Home”) faction, are working relatively smoothly with the ruling coalition’s two centrist parties, but are less comfortable with its three left-wing factions, especially the Islamist party Ra’am. 

If a plea bargain matures and Netanyahu departs, Bennett, Sa’ar and Lieberman, who between them command 20 of the Knesset’s 120 members, will likely face pressure from their constituents to dismantle the current government and create a conservative coalition dominated by the Likud under Netanyahu successor. 

Such a coalition would likely be joined by 22 lawmakers from three religious parties currently in the opposition. Coupled with Likud’s 30 seats, such a conservative coalition could easily command a solid 60% parliamentary majority. 

The main victims of such a rearrangement would be Bennett and Foreign Minister Yair Lapid, whose rotation agreement calls for the latter to become prime minister in mid-2023. In addition, a Likud-led coalition could marginalise Lieberman as well as Defence Minister Benny Gantz and his centrist Blue and White party. That is why all the above can be expected to circle their wagons and fight for the current coalition’s survival. 

At the same time, any new Likud leader might learn that cobbling together an alternative coalition is more difficult than meets the eye. Likud has effectively been split by Lieberman and Sa’ar in recent years. Netanyahu’s departure will not necessarily offset this dynamic, and in fact, might even accelerate it. 

The struggle to succeed Netanyahu might not produce a clear victor, and the winner might find some of his or her rivals difficult to control. Bennett, Sa’ar and Lieberman might thus potentially be able to snatch some of Likud’s lawmakers and bring them into the existing coalition without incorporating Likud itself.

 

In the longer term, the prospective plea bargain can be expected to affect the relationship between the branches of Israel’s political system.

Unlike the conviction of former President Moshe Katsav for sexual offences in 2010 and former Prime Minister Ehud Olmert for bribery in 2014, Netanyahu’s trial constituted a trauma for Israel’s judiciary, which has never before faced public attacks on it like the ones launched by Netanyahu and his supporters.

One result of the recent Netanyahu-judiciary clash has been a bill that limits an Israeli premiership to a maximum of eight consecutive years. The Bennett Government presented such a bill last year, and the Knesset passed it in a first reading. Conceived by Justice Minister Sa’ar, a former Netanyahu protégé, the bill reflects Sa’ar’s conclusion that his former mentor’s alleged crimes resulted from an overextended incumbency. 

The bill, which allows a prime minister’s return to office three years after an eight-year stint has ended, will likely be passed in second and third readings. It will thus loom as a monument to the Netanyahu era’s acrimony between the government and legislature on the one hand and the judiciary on the other. 

However, the crisis runs deeper than one man. The effectiveness of Netanyahu’s assault on the judiciary, as reflected by his electoral success even while under indictment, means that a significant part of Israeli society is antagonistic to the judicial system, and especially the High Court of Justice. 

A plea bargain will likely make people on both sides of this conflict seek means of reconciliation – and possibly also rewrite some of the rules that define the different branches’ powers vis-à-vis one another. 

During the 11-year presidency of Justice Barak, which ended in 2006, Israel’s Supreme Court assumed unprecedented powers, including annulling considerable legislation that it judged unconstitutional. 

Barak’s so-called “activist” legalism came under political attack from conservatives and legal criticism from liberals, most notably Barak’s predecessor as High Court President, Meir Shamgar (1925-2019). 

A prospective plea bargain could help create a lull in that historic war, and potentially inspire a dialogue based on a new consensus – namely, that excessive power can be bad for anyone, whether towering jurists like those on Israel’s Supreme Court or accomplished statesman like Binyamin Netanyahu. 

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