Eric S. Sherby

How Bibi can avert a constitutional crisis

A suggestion that protects the country from an indicted premier (if he's indicted), and preserves the office for an aquitted Netanyahu (if he's acquitted)
Illustrative. Left, Benny Gantz, center, Prime Minister Benjamin Netanyahu, right, Yair Lapid. (Hadas Parush, Noam Revkin Fenton, Hadas Parush/ Flash90)
Illustrative. Left, Benny Gantz, center, Prime Minister Benjamin Netanyahu, right, Yair Lapid. (Hadas Parush, Noam Revkin Fenton, Hadas Parush/ Flash90)

I have voted for Bibi Netanyahu more times than I can count, and I’d like to vote for him again on April 9.  But I also do not want to see our country embroiled in a constitutional crisis – not today, not a year from now.

Why a constitutional crisis? Because never before has a sitting prime minister faced a likely indictment during an election campaign, and the reactions or anticipated positions of the country’s various institutions – including Justice Minister Ayelet Shaked and the High Court of Justice — are either too unclear or too unpredictable.

Let’s start with what is clear –Netanyahu is not required to resign merely because the Attorney General has announced that, subject to a hearing (shimu’a), he intends to indict Netanyahu.

But things might change when and if an indictment is actually filed.

If an indictment is filed, and if, at that stage, Bibi is serving as prime minister, there will be petitions brought before the High Court against Netanyahu’s continuing to serve.

What will happen then?  There are two possibilities:

  1. If the High Court were to rule that Bibi need not resign, his critics will argue that the court has been “emasculated” by Shaked’s “judicial revolution.” And there will protests in the streets;
  2. If the High Court were to rule that Netanyahu needs to resign, his supporters (and others) will argue that the court has overreached – and the calls for “reigning in” the court will only increase. And, yes – in this scenario too, there will be street protests.

Why wait for a constitutional crisis down the road when there is (as described below) a solution now?

Many supporters of Netanyahu argue, essentially, that the election can be a “referendum” on Bibi’s legal position.  Those supporters assert that, if Netanyahu wins the April 9 election, such victory will be his “vindication.”

But that is a tricky argument – first, how is a “win” defined?  If the Likud were to get more votes than any other party?  Or would a “win” be if the Likud were to get one more mandate?  And what happens if the Likud were to get votes because Benny Gantz and/or Yair Lapid and/or Avi Gabbay say something stupid between now and April 9?  Under such a scenario, Netanyahu’s critics would argue that his victory is unrelated to the public’s view of his innocence or guilt but rather the dissatisfaction with other candidates, and those critics would argue that his trial still must proceed and that he must still resign.

And if the Likud does not receive the most mandates, many of Netanyahu’s supporters will argue that it is because of the anti-Netanyahu campaign in which the media joined forces with his rivals.  Bibi’s supporters are not likely to conclude that an electoral “loss” (again – difficult to define) means that the public believes that he is guilty of a crime.

Therefore, regardless of the outcome of the election, the idea of letting it become a “referendum” on the indictment is likely to leave many in the Israeli electorate unsatisfied.  And above all, such a “referendum” would not tie the hands of the AG or of the judiciary.

Therefore, the “referendum” idea at best defers a constitutional crisis – it does not avoid one.

Not unexpectedly, the flames of a constitutional crisis have been fanned by Netanyahu’s rivals – Benny Gantz and Yair Lapid of the “White & Blue” united list and Labor’s Avi Gabbay.  They have all argued that Netanyahu is “required” to step aside because of the likely indictment.

These critics of Netanyahu largely fail to point to legal sources, and they suggest a low level of commitment to the presumption of innocence.

Of course, it is easy and convenient for Netanyahu’s challengers to call for him to resign – they are not the one being asked, essentially, to accept a presumption of guilt.

And most important – none of Netanyahu’s challengers has explained what should happen if he were to be forced from office and subsequently acquitted.

Here’s a proposal that forces Netanyahu’s rivals to put their money where their mouths are and to face the consequences of a criminal justice system that might have already become too politicized:

  1. Bibi announces that he conditionally agrees not to be a candidate on the Likud’s list on April 9. This announcement would be conditioned on the following:
  2. Each of Netanyahu’s rivals (Gantz, Lapid, and Gabbay) announces immediately that, if Netanyahu sits out this election and if he is acquitted by the District Court of the charges against him, then (a) new elections will be called within 90 days, and (b) for a period of time that equals the number of days from April 9, 2019 through the date on which Netanyahu is acquitted, such rival will not be a candidate for the Knesset.

If Netanyahu were to make such a conditional offer, and if it were to be accepted by his major rivals, then there would be no petition to the High Court and, therefore, no constitutional crisis.

What would be in it for Netanyahu to make such a conditional proposal?  In the short term, he would demonstrate that he does not see himself above the law, and he could avoid a constitutional crisis.

How likely is it for Bibi (or any politician) to forfeit his personal interest – even temporarily – in order to avoid a constitutional crisis?  In 2000, in the US, Al Gore decided to bite his tongue at the decision of the Supreme Court to instruct the state officials in Florida to stop recounting “disputed” ballots in the presidential election.  At the time, the conventional wisdom was that Gore acquiesced in order not to go down in history as the candidate who caused a constitutional crisis.

So, the concept is not unprecedented.

What’s in it for Gantz, Lapid, and Gabbay to agree to such a deal?  If they truly believe that Netanyahu is “unfit” to serve and that he will be convicted, then in the short term, his rivals get him out of the upcoming race.  And if it turns out that they were right about his guilt, in the long term, they get Netanyahu out of politics – probably forever.  An additional upside for his rivals (in the short term) would be that they too would get (some) credit for avoiding a constitutional crisis.

On the other hand, if Netanyahu’s rivals believe that there’s a reasonable doubt as to his guilt, then they will certainly hesitate to commit to early elections and/or to sitting out the next election.

Such possible hesitation on the part of his rivals is all the more reason for Bibi to make the conditional offer.  If his rivals refuse to sign on to such a deal, they enable Netanyahu to argue as follows:

You see, my rivals accuse me of not believing in the Israeli criminal justice system, but they themselves either do not believe in the system, or deep down they know that I am innocent.  If they truly believed that I am guilty, then they would have no hesitation in accepting my conditional offer.

Under the proposal outlined above, every day of delay in the trial would have political ramifications for multiple players – Netanyahu would want to get back into politics quickly, and at the same time, his rivals would not want to face the prospect of a long “time-out.”  Therefore, the AG’s office would be under great pressure to move quickly.

If the pace of this case so far is any indication, a prompt trial would probably benefit Netanyahu.

Who would be the big winner if such a conditional offer were to be accepted?  In the short-term, the big winner would be Yuli Edelstein, who is number 2 on the Likud list, and he would (presumably) become prime minister in a Likud-led coalition in Bibi’s absence.

But Bibi should not really worry about Edelstein.  True, Netanyahu did once before take a “time-out” – in 1999, when he handed the Likud party over to Ariel Sharon – and that time-out turned out to be much longer than Netanyahu expected.

Bibi should take comfort in knowing that Edelstein’s ego is smaller than that of Sharon, and given Bibi’s good record as prime minister over the past decade, Edelstein would have a hard time (even if he wanted to) in preventing Netanyahu from coming back post-acquittal.

Although Edelstein might be the big winner in the short term, down the road the big winner might actually be Netanyahu.  Imagine running as the head of Likud a year or two down the road, after having been acquitted, knowing that each of Gantz, Lapid, and Gabbay will have to sit out that election.  Are any of their parties likely to find an alternative candidate who is more of a serious threat to Bibi than the current party heads?

Of course, the remaining big question is:  What would the High Court do if (a) Bibi were to extend the kind of conditional offer outlined above, (b) it were to be rejected by his rivals, and (c) an indictment were to follow?  Would the court rule that Netanyahu may not serve as prime minister?

In our judicial system, every day judges “reward” litigants who make an effort to settle and “punish” those who do not.  (Judges won’t admit they do that, but they do.)  Applying that modus operandi, it would seem that the High Court could not completely ignore the fact that Bibi extended his conditional offer.

On the other hand, the High Court rarely rejects an opportunity to exert authority, so there is no guaranty that the court would give Netanyahu any “credit” for having tried to avert a constitutional crisis.

But on that issue, in the eyes of the High Court, Bibi would be no worse off making the conditional offer than he would be by not making it.

In sum, there are enough good reasons for an innocent Netanyahu to make the conditional offer.

About the Author
Eric S. Sherby is an American-Israeli lawyer, specializing in international litigation and arbitration, at the firm of Sherby & Co., Advs., which he founded in 2004. For ten years, he was the Chair of the International Litigation Department of Yigal Arnon & Co. He serves as a Vice Chair of the ABA's International Litigation Committee.
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