Netanyahu: Prosecution? Or Persecution?

During the past few years, and more intensively within the past few months, we have been regaled with stores in the Hebrew and English press about the crimes of Prime Minister Benjamin Netanyahu and his wife Sara. Some say that this couple is corrupt, and that by their corruption they subvert the state. Others, including Netanyahu himself, say these allegations are all without merit. Only a court of competent jurisdiction can make a final determination, but that may be years away, and it is possible also that no trial is ever held. For now, what can we say? Must Netanyahu face prosecution? Or are these charges merely persecution?

We should start first by understanding the various charges against the Netanyahus. In the seven year period, 2011-2017 inclusive, there have been 17 allegations of crime or corruption made against Benjamin or Sara Netanyahu. I will not discuss each of these charges here, but the full list appears at the end of this opinion, organized according to closed police files / media storm only / open police files. To the best of my knowledge, there is no other politician in the history of the State of Israel that has had 17 allegations of crime made against him within a period of a few years. This is not normal, not standard, and not acceptable. If these charges are true, Netanyahu might be categorized as one of the truly corrupt politicians of the last 100 years, in the category of Ferdinand and Imelda Marcos or Mohamed Suharto, who stole billions from their countries. What is the truth of the matter?

As listed below, more than half of the allegations resulted in formal police investigations that have now been closed. These include, for example, excess reimbursement for foreign travel as Treasury Minister (called “Bibitours”), excessive purchase of memorial candles after the death of Sara Netanyahu’s father, deposits for empty glass bottle, and others, all serious crimes, but these have been invesigated and closed by either the police or the attorney-general. Other allegations did not result in police investigations, but were well-reported in the press, including, for example, excessive purchases of pistachio-flavored ice cream, possibly also vanilla-flavored ice cream.

It is the open files that are of importance today, To the best of my knowledge, there are five open police investigations, but I will not discuss here the case of the used patio furniture, nor meals that were ordered from outside restaurants at the time the Netanyahus had an internal chef. I will focus only on the three most recent investigations.

Case 3000, alleging the payment of some tens of millions of dollars in order to secure an order from the Israeli navy for purchase of German submarines, is very serious. It is not clear if there was a crime, because payment to an agent – even a large payment – is not in itself a crime. But if there was a crime, then everyone associated with it, receivers, takers, inducers, should be dismissed from government and should serve time in jail. The problem here is that all reports in the press say that every single witness, without exception and including Netanyahu, says the prime minister was not involved, did not receive money, did not induce payment, and in short had no connection to any possible crime. End of story, and in fact case 3000 is no longer appearing in the press.

Case 2000, involving conspiracy by the prime minister and the editor of the daily newspaper Yediot Aharonot, involves possible conspiracy to improve press coverage in exchange for restrictions on competitors of this newspaper. To establish the crime of “conspiracy”, the prosecution must show (1) agreement; (2) action in furtherance of that agreement; and (3) an objective of the agreement that is itself illegal. The problem here is that the two people involved, and all other witnesses, state repeatedly that there was no agreement of any kind, neither written nor oral. Hence there were no actions in furtherance of an agreement, nor an illegal objective, because there was no agreement. In essence, the police investigation involves a possible objective, which might have been pursued by actions, according to an agreement which could have been reached, but none of this occurred.

Case 1000 involves alleged bribery and breach of trust in the provision of government services for Arnon Milchan. To establish a crime, each of four elements must be proven beyond reasonable doubt, and as far as I can see there is not sufficient evidence for any one of these elements.
(1) Transfer of significant value to the government official – is $150,000 in cigars and champagne over ten years to a multi-millionaire (money acquired legitimately through books and speeches) “significant value”? I would say not, but others may disagree, and they would have an argument.
(2) A government service of significant value – is Netanyahu’s call to John Kerry, in order to obtain a US visa for Arnon Milchan, “significant value”? Again I would say no, but others may disagree.

(3) Causal connection between the significant value transferred and the government service. It must be proved that the value caused the government official to render the service. Allegedly Netanyahu called John Kerry to obtain a US visa for Arnon Milchan, which was eventually received by Milchan. The causal connection is not clear. Recent reports say that Netanyahu performed the same service without any payment for Uzi Arad, a former national security advisor. If these reports are true, they would suggest, although not prove, that Netanyahu did not make these calls in response to the cigars and champagne received. The matter is not resolved.

(4) A criminal intent, also known as mens rea. Unless there is criminal intent, there is no crime. Assuming that the other elements of bribery have been established, did Netanyahu know his actions were illegal, or have reason to know, or at least have no basis to believe that his actions were illegal? There will be two problems in showing criminal intent. First, most bribes are in the form of cash, gold bullion, or bearer bonds, often in the millions of dollars. Here we have cigars and champagne, in a possible total sum of $150,000 over ten years. The element of illegality is not clear here, and Netanyahu might well say he did not believe he acted illegally. Second, Netanyahu told Milchan repeatedly that the gifts were indisputably legal. How would Netanyahu know that, since he is not a lawyer? Very likely he consulted with his own attorney, who provided a positive legal opinion, which would be an extremely strong defense against any finding of criminal intent.

A serving prime minister may be indicted only by the chief legal officer of the state. Attorney-General Mandelblit knows all the facts mentioned here, and more. If he feels that the charges are flimsy, or the evidence inadequate, he will not indict. As matters stand today, and on the material reported in the press, it is highly unlikely that an indictment issue, not to mention there will likely be no trial and no conviction. If all this is true, then Netanyahu is not being prosecuted, but rather persecuted by the police and by elements in the press. Why is he being persecuted? That’s a story for another day.

Closed Police Files:
1. Bibitours; 2. Waiters hired as cleaningmen; 3. Electrician Avi Fahimi; 4. Care for Sara Netanyahu’s dying father; 5. Memorial candles; 6. Portable heaters; 7. Forgery in 2009 primaries; 8. Illegal financing of 2009 campaign; 9. Deposits on empty glass bottles.

Media Storm Only – No formal investigation:
10. Odelia Karmon; 11. Arnaud Mimran; 12. Pistachio flavored ice cream/some people claim also vanilla flavored ice cream.

Open Police Files:
13. Used patio furniture; 14. Ordered meals; 15. Case 1000 – bribery & breach of trust for cigars and champagne; 16. Case 2000 – conspiracy with Arnon Mozes; 17. Case 3000 – bribery in the purchase of three submarines from Germany.

About the Author
US patent lawyer and Israeli attorney, specializing in information & communication technologies (ICT) as applied to both military and civilian affairs. With the assistance of Shurat HaDin – Israel Law Center, authored a book on the laws of war (also called “international humanitarian law”) entitled A Table Against Mine Enemies: Israel on the Lawfare Front (Gefen Publishing, Jerusalem, 2017). Aliyah in 1988. BA Harvard College, MBA Northwestern, JD University of Chicago.
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