Netanyahu's Jerusalem Trial

Sometimes, no one wins

This posting may surprise regular readers of the Anan Sahadei blog. It surprises me.

As regular readers know, I believe Netanyahu has been a disastrous prime minister for Israel. If he had integrity, he would have resigned over a year ago when the 7th of October showed that his three central long-term policies had failed catastrophically. I wrote about this in February. I still believe it.

However, in preparation for the renewal of hearings in Netanyahu's corruption trial in Jerusalem, I have been thinking anew about the case. I have doubts about whether the prosecutors should have filed this case, given the damage it will cause, no matter whether Netanyahu is found guilty or innocent.

The trial concerns three cases:

• In Case 1000, Netanyahu stands accused of fraud and breach of trust. He allegedly accepted gifts valued at $198,000 from businessmen Arnon Milchan and James Packer, in the form of cigars and champagne.

• In Case 2000, Netanyahu stands accused of fraud and breach of trust. His conduct consists of discussions he had with Arnon Mozes, publisher of the Yedioth Ahronoth media group. Netanyahu's goal was to improve coverage of his government. Conversation included discussing restrictions on the Israel HaYom newspaper competing with Mozes' publications.

• In case 4000, the most serious, Netanyahu stands accused of bribery, fraud, and breach of trust. While serving as Communications Minister alongside his prime ministerial post, the prosecution accuses him of encouraging regulatory decisions in favor of the business interests of Shaul Elovitch, the controlling shareholder of Bezeq, Israel's largest telecommunications corporation. In return,, the Bezeq-owned, popular online news site "Walla!" would favorably cover Netanyahu (and his family).

Why do I have doubts? Not out of sympathy for Netanyahu. However, Netanyahu will not be PM forever. I am thinking of the day after. He will leverage a verdict of innocence politically, or he will have to leave office if found guilty of the most serious charges. My concerns are not for him but for the country. We may be saddling our democracy with a standard of conduct that will be very hard to realize without generating either worse abuses of public trust, or inactive, ineffective government.

The legal system only has answers to some ethical problems. There is an old Jewish joke about a housewife who made soup for her family. Appalled, she realized that she made the soup in a chamber pot. She ran to the village rabbi, showed him the soup in the pot, and asked him if it was kosher. He replied legally and accurately, in terms of Jewish religious law: "It's kosher.” Then he added: “But it stinks!"

In each of these cases Netanyahu treads a, may I use the term "typical Netanyahu-ish” line between behavior that is self-serving, too clever by half, on the one hand, and perhaps crosses the line into criminal conduct on the other. Each case functions in an area where the law may or may not apply, and enforcement generally does not take place. If it did, our courts would be swamped with cases they have few tools to handle.

Let's not be naive. People who seek a quick advantage and don't have ethical self-restraint, often take similar actions. A PM with civic responsibility would never have gotten into these situations, especially regarding the cigars and champagne. Public rectitude needs "not only to be done but to be seen to be done." It is not "seen to be done" when you are PM and accept nearly $200,000 in presents from two very influential friends who can be expected to leverage their connection with you. Is it criminal when we don't see clear proof of a specific quid pro quo? The court will have to decide. But even if it is kosher in the technical sense, it still reeks.

The other two cases raise serious questions about how we draw a line between legitimate lobbying of public figures with decision-making powers, and illicit behavior. The most problematic is how to define favorable coverage. I don't envy the courts if they have to make determinations regarding if coverage is "favorable." Describe Mrs. Netanyahu as "beautiful," "matronly," "distinguished," or "an old woman." How would the court decide that the coverage is illegitimately favorable?

In a democracy, do we want courts reviewing journalists’ products to pick out the cases where editors imposed an institutional line, because a publisher wants to see the publication support a specific cause? What would remain of most of what Haaretz publishes, for example? What would remain of the free speech of reporters?

However the court rules, I fear that Israeli society and its democracy will come out the poorer for it. That would be a fair summary of the Netanyahu years of government as a whole. The sooner they end, the better.