A gift may well be bribery if you’re the prime minister

These are especially demanding days for Israel’s attorney general, Avichai Mandleblit and his legal team from the State Attorney’s office as they review the many arguments presented by the prime minister’s attorneys, and decide whether to indict Benjamin Netanyahu on three separate counts of corruption and misuse of power. Netanyahu continues to claim that “there will be nothing because there was nothing.” Yet, anyone who read the detailed, 45-page report prepared by the attorney general prior to the hearing understands that there appears to be very much indeed – and that much of it was illegal. How can we reconcile the disconnect between the obdurate position taken by the prime minister and the litany of details which have come to light?

One compelling explanation can be gleaned from the research of Dan Ariely and his many publications. Professor Ariely is an international expert on behavioral economics and in general an academic with an uncanny ability to understand (and empirically show) the motives behind human behavior. In his best-selling book Predictably Irrational, Ariely dedicates an entire chapter to reasons why so many people engage in dishonest behavior, when, in innumerable surveys, the public attributes great importance to the quality of honesty. Indeed, acting honestly, typically leaves people with a positive feeling.

Ariely’s explanation is associated with the distinction that people make between meaningful, major offences and those which appear to them to be only trivial indiscretions. This distinction is apparently germane in understanding the dissonance behind the prime minister’s position. Ariely argues that only after we violate a significant, societal norm does the “superego” (that Freudian synonym for human conscience) signal us that we have done something wrong.

Ariely writes: “The problem is that our internal honesty monitor is active when we contemplate big transgressions, like grabbing an entire box of pens from the conference hall. For the little transgressions, like taking a single pen or two pens, we don’t even consider how these actions would reflect on our honesty and so our superego stays asleep.”

Ariely conducted a range of experiments that assessed how the public classifies honest behavior. In one of them, students at an MIT dorm with a public refrigerator did not hesitate to take a cans of cola that Ariely left there, even as it was clear that the cans did not belong to them. By way of contrast, when in lieu of the sodas, Ariely left a plate with dollar bills on it, the students’ response was entirely different. It seems that removing the cash from the refrigerator was perceived categorically as stealing — and for days the bills were left untouched.

In other words, when behavior is not considered to be an indisputable, socially prohibited transgression, then the conscience ceases to drive how we act and equations of “cost-benefit” take over. For instance, in these cases when people believe that they will not be caught taking something, and the profits outweigh the losses — in their less than systematic calculations, they will go ahead and take it — even if formally it that is against the law. In the case of Prime Minister Netanyahu, this sort of thinking appear to have led to acts of bribery and corruption.

The definition of “bribery” under Israeli law is very broad. Section 293 of Israel’s Penal Code holds that it makes no difference if the bribe was money or the equivalent of money — or alternatively: a service or a benefit. Moreover, the law reads: “There is no significance if it was for actively doing — or from ceasing to do, slowing, giving preferential treatment or discriminating negatively.”

Another insight of Ariely is particularly relevant. Ariely distinguishes between contexts which are either commercial or social. In his view, the distinction completely defines what is acceptable behavior at a given time. One example he gives in his book involves a holiday dinner with one’s mother-in-law. Ariely explains that even though it would be completely inappropriate to stand up at the end of the meal — and exclaim that you want to pay $200 for such a sumptuous dinner. At the same time, it is perfectly acceptable to bring a gift to the meal of equal or greater value as a token of appreciation. The offer of a cash payment is inappropriate in this case, because it relates to the meal as a commercial situation when it is generally recognized as a context which is social.

When the prime minister sought gifts from “friends” or elicits positive press coverage in return for assistance — he apparently sensed that he was operating in a social/political context — and did not understand that it actually held financial/commercial meaning. Many other people living their everyday lives in our modern society are probably inclined to agree and see nothing unfitting about manipulations to receive gifts or positive press coverage — unless perhaps there is money exchanged. Indeed, there are probably instances where such quid-pro-quos are the norm in commercial interactions. But this is simply not the case in the public sphere.

In the 1000 file, for example, Netanyahu and his wife regularly received gifts of expensive champagne, cigars and even jewelry from movie producer Arnon Milchan and Australian billionaire, James Packer. From the couple’s subjective perspective, the dynamics may have been entirely social, even if the aggregate value of the gifts exceeded a million shekels – unquestionably a commercially relevant sum. According to the evidence which has been accrued by the Israeli police, there appears to have been reciprocation: promoting a law to grant Milchan tax exemptions as a returning Israeli citizen; asking American authorities to help him resolve a visa problem and promotion of other commercial enterprises.

It is quite possible that Netanyahu also believed that he was conducting a legitimate, friendly social exchange — when he suggested marketing assistance to a newspaper owner in return for positive coverage. The problem is that in these cases, Israeli criminal law does not differentiate between commercial and social contexts. From the law’s perspective: corruption is corruption; it is unacceptable, and it is illegal.