Bribery charges against Netanyahu wouldn’t hold water in a US court

The Times of Israel has published a translation of the 257-paragraph specification of Attorney General Mandelblit’s allegations against Prime Minister Netanyahu proposing to charge Netanyahu with three crimes. An American lawyer experienced in prosecuting and defending “white-collar” criminal charges can now evaluate the potential criminal charges against Israel’s Prime Minister in light of American standards. Would Netanyahu’s conduct amount to criminal offenses under American law? This lawyer believes that no respectable American prosecutor would bring comparable charges on the facts Mandelblit alleges against an elected official in the United States. If he or she did, the charges would be thrown out before trial.

Paragraphs 2-37 of Mandelblit’s charge-sheet allege that Netanyahu violated Section 284 of Israel’s Criminal Law that makes it criminal for a “public servant” to commit “fraud or a breach of trust that injures the public.” Netanyahu allegedly did favors for Arnon Milchan and James Packer in exchange for cigars and champagne (valued at more than 700,000 Israeli shekels) that he and Mrs. Netanyahu received from the two businessmen between 2011 and 2016. Netanyahu’s “favors” included assisting Milchan to resolve problems he had with his US visa and helping Milchan persuade the finance ministry that he should get an extended tax-exemption term. There was no allegation that the “favors” produced an illegal result.

Paragraphs 38-84 charge Netanyahu with committing “fraud and breach of trust” by promoting legislation and arranging a meeting with important legislators following the offer of a “bribe” from Arnon Moses, the owner of the daily newspaper Yedioth Ahronoth. The offered “bribe” (also called “the gift” by Mandelblit) was, according to paragraph 72 of the charge sheet,  Moses’ “promise to work for a substantial change [for the better] in the way that {Netanyahu and his] family were reported in the media outlets owned by the Yedioth Ahronoth group, and for a change for the worse in the coverage of [Netanyahu’s] political rivals.” The proposed legislation Netanyahu supported would have limited the circulation and advertising in a competing newspaper called Yisrael Hayom, owned by American Sheldon Adelson. The proposed legislation was never enacted.

Paragraphs 85-257 assert that Netanyahu violated not only the “fraud or breach of trust” provision but also Section 290 of Israel’s Penal Law that declares: “If a public servant took a bribe for an act connected with his position, then he is liable to seven years imprisonment.” The bribe alleged in this most severe charge was, according to Paragraph 99, “favors” given to Netanyahu and his wife “in the field of media coverage” by Shaul Elovitch, the owner of a controlling interest in the Bezeq Group that included the Walla! News website, “one of the two leading news sites in Israel.” The Netanyahus are accused of having made many “egregious” demands for favorable publicity on Walla, to which Elovitch made “egregious capitulation” by “steamrolling” editors and writers. Paragraphs 100-197 of Mandelblit’s allegations detail the Netanyahu demands for favorable publicity and quote many recorded conversations concerning these demands. Paragraphs 99 and 200 declare that Elovitch’s compliance with these demands allegedly created a “quid pro quo” relationship. There is no allegation that any money or any valuable property was ever given to Netanyahu by Elovitch.

What did Netanyahu do in exchange for this “bribe” of favorable media coverage? The charge-sheet alleges that Netanyahu used his “power and authority” “to promote matters concerning Elovitch’s business affairs” and to have subordinate officials “act in abnormal ways.” The charge-sheet does not allege that Netanyahu made any formal ruling, issued any improper decision as Prime Minister (or when he held any other Cabinet office), or committed any corrupt act as a “quid” for the “quo” of favorable publicity from Elovitch and Walla. Through a subordinate he appointed, Netanyahu allegedly speeded up a favorable decision by the Ministry of Communications and by the Cable and Satellite Broadcasting Council on a merger of Bezeq telecom and Israel’s satellite TV provider Yes, in which Elovitch had a substantial financial interest.

An American prosecutor faced with comparable allegations against an elected public official would have to consider what the US Supreme Court recently ruled when federal prosecutors charged Robert McDonnell, a governor of the State of Virginia, and McDonnell’s wife with bribery. In little more than one year, the McDonnells had accepted $175,000 in gifts – almost as much as the Netanyahus received in cigars and champagne over six years — from a Virginia businessman who owned a company that produced a nutritional supplement. Governor McDonnell arranged meetings for his benefactor with the Governor’s subordinates, hosted official events and contacted other Virginia officials to encourage the study and use of the supplement, and invited his benefactor to official events so he could meet with Virginia officials important to his business.

The McDonnells suffered through a grueling 5-week jury trial, were found guilty of accepting a bribe, and were sentenced to imprisonment. A federal appellate court affirmed their convictions, and the case went to the Supreme Court. During oral argument the Justices noted that if Governor McDonnell committed a crime by doing favors for someone who had provided him financial benefits, every United States Congressman and Senator could be criminally charged for courtesies shown to campaign contributors. The Court then ruled – with no disagreement between “liberal” and “conservative” Justices — that the “official act” that must, under federal bribery law, be exchanged, quid pro quo, for a bribe had to be something other than “hosting an event, meeting with other officials, or speaking with interested parties.” The Court ruled in a strong unanimous opinion written by Chief Justice Roberts that bribery is committed under federal law only if the official allegedly bribed makes an official decision or action on a pending matter that amounts to “a formal exercise of governmental power” comparable to a court or agency ruling. The McDonnells’ conviction was vacated.

In none of the three cases that Attorney General Mandelblit proposes to bring against Prime Minister Netanyahu did the Prime Minister render the kind of official decision for a friend or benefactor that must now be proved in a bribery prosecution under American law.

Another peculiar aspect of the proposed criminal charges against Netanyahu would immediately doom any similar criminal prosecution in the United States. The “bribe” that was promised and given to Netanyahu according to the second and third charges that Attorney General Mandelblit has specified was favorable publicity, not cash or gifts or property in any form. To this lawyer’s knowledge, no public official in the United States has ever been convicted or accused of receiving or soliciting a bribe because he or she was promised or given “favorable publicity” or benefited by how he or she was “reported in the media outlets.” Politicians routinely seek favorable publicity, and those who provide it are not thought to be guilty of “bribery” even if the recipients of such publicity give their benefactors favorable treatment.

What of “fraud or a breach of trust that injures the public” covered by Section 284 of Israel’s Penal Law? Although Canada’s Criminal Code has a similarly worded provision governing public officials, the United States’ Criminal Code has no such broadly worded law. In fact, American courts have refused to extradite to foreign countries individuals who have been charged or convicted in those countries of “breach of trust” because there is no equivalent offense in American law so it does not satisfy the “dual criminality” requirement for extradition. Nor does the Israeli-American extradition treaty list “breach of trust” as an extraditable offense.

The closest that American law comes to the Israeli “fraud or breach of trust that injures the public” is what American prosecutors used to call “honest services fraud.” It was prohibited by a law Congress enacted in 1988 to protect the “intangible right of honest services.” In a highly publicized 2010 decision (Skilling v. United States), a majority of the Supreme Court ruled that this relatively new law was unconstitutionally vague unless it was limited to instances of bribes and kickbacks. Three of the Court’s Justices even refused to limit the law with this construction and would have declared the entire “honest services fraud” law unconstitutional and unenforceable. The law has now been repealed.

Israel is, of course, entitled to apply its more severe legal standards to the conduct of its public officials. But when Americans hear or read that Israel’s Prime Minister Netanyahu is being accused of soliciting and receiving “bribes,” they should understand that Israeli authorities are applying legal standards that are unacceptable in the United States.

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Nathan Lewin is a Washington lawyer who was on the federal prosecution team against James Hoffa and against the murderers of three civil rights workers in Mississippi. Mr. Lewin argued criminal cases for the United States in the Supreme Court as an Assistant to the Solicitor General and taught a course titled “Defense of White-Collar Crime” as a visiting professor at Harvard Law School. Mr. Lewin was also criminal defense counsel for Attorney General Edwin Meese, Congressman George Hansen, the American-Israel Public Affairs Committee (“AIPAC”), and Shalom Rubashkin. He represented former President Richard Nixon in the Supreme Court.