If Bibi Were Tried in America

The Attorney General of Israel finally has filed the long-awaited formal indictments against Prime Minister Benjamin Netanyahu with the Jerusalem District Court. Barring an unforeseen plea bargain, Israelis will watch their “Trial of the Century” unfold.

The State charged the sitting prime minister with bribery, fraud and breach of trust. Most notably, Alan Dershowitz, who contended with a straight face that a president who abuses the power of the office does not merit removal, has argued similarly here. Netanyahu’s actions did not constitute a crime, he wrote. Rather, Bibi performed constituent service, like any other office holder. Doing favors for lavish gifts showed friendship, not venality, so the argument goes.

Former Assembly Speaker Sheldon SIlver, “the Bibi Netanyahu of New York State” in his political talent, faced similar charges. As speaker of the lower house of the Legislature for 20 years, he, along with the leader of the upper house and the governor, controlled the state. Silver defended himself with a claim akin to Dershowitz’s: he did nothing unusual and never agreed to do anything specific when he took the money. Last week, a federal court of appeals found that Silver violated US law. So did Bibi, assuming the prosecutors can prove their case.

The prosecution’s evidence shows that Mr. Netanyahu:

  • Accepted lavish gifts from people with extensive business interests in Israel and abroad. In exchange, Bibi overrode Treasury opposition to maintain a tax shelter to benefit one wealthy benefactor and secured from the US Secretary of State a valuable visa for the donor. The prime minister advanced the benefactor’s investments in Israel
  • Conspired with a newspaper publisher to obtain favorable coverage, in exchange for the Knesset enacting a bill to put a competing outlet out of business and
  • Manipulated news coverage on Walla and made the popular news site his election platform, in exchange for using his position as Communications Minister to enrich the website’s owner

Juries at two trials found that Mr.Silver supplemented his salary in the following manner:

  • He demanded that a researcher on asbestos-related cancer refer patients to a law firm. The firm paid Mr. Silver a referral fee for each potential plaintiff, though Mr. Silver did no actual work. In exchange, Mr. Silver awarded the researcher and a charity his wife promoted grants from state funds the speaker controlled and helped the researcher obtain a government permit
  • Silver pressured two real estate companies to hire a law firm, from which Silver, with no expertise in the field, obtained a cut of the fees generated. In exchange, Mr. Silver voted to approve projects for the developers and against rent control legislation, to the benefit of the realtors and to the detriment of his constituents. .

The court of appeals explained that the US Supreme Court made corruption cases hard to prosecute. Because the justices had allowed unlimited corporate contributions to candidates and public officials, the Court had to allow the contributors to get something in return. However, the Court drew a line at “official acts.” A public office holder could not turn his control over specific government activity into a personal ATM. Silver argued that, in addition, the politician and the contributor had to agree,at the time of the deal, on exactly what favors would flow in exchange for the money . Since Silver claimed he never promised anything specific, he did nothing wrong. In effect, he argued that he basked in friendship and provided constituent services.

The court last week said no. First of all, Mr Silver did engage in “official acts.” Though the statute of limitations expired, his awards from the state fund qualified. His votes for real estate projects and against rent control legislation did as well. In addition, recognizing reality, the appeals court held that the parties did not have to agree on specific favors. Rather, the public official had to be aware of the interests the contributor wished to pursue. Silver knew that the researcher wanted money, as the doctor told him so, and that the real estate companies needed project approvals and removal of rent controls.

The Israeli prosecution met that standard here, assuming the facts at issue. Tapes show that Netanyahu knew what Yediot wanted — indeed, he proposed the favor. In the Walla case, he consciously sought to benefit Walla’s owner, even talking to Yair Lapid about it. In the third case, the prime minister knew, or at a minimum, should have known, how what actions would benefit their interests. In Silver’s case, the court found nothing wrong with getting the permit, as legislators do that for their constituents. Prime ministers do not ordinarily seek residency visas for their friends from the US Secretary of State.

Even the lax US corruption law does not allow what Mandelblit alleges.

About the Author
Joshua Z. Rokach is a retired appellate lawyer and a graduate of Yale Law School.
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