On influence peddling, bribery, and precedent

The fact that Alan Dershowitz is (by his own admission) a personal confidant of the Prime Minister, and lives (and learned law) outside Israel hasn’t stopped Netanyahu’s legal team from recruiting him to “opine” on their client’s guilt, or, per Dershowitz, lack thereof. So, here comes Dershowitz trying to exert influence on Attorney General Avichai Mandelblit.

Have we no legal scholars of our own? Or is Jewish influence peddling from abroad now de facto acceptable? We certainly don’t have reciprocity or comity of law between the US and Israel. (According the US State department website, “there is no bilateral treaty or multilateral convention in force between the United States and any other country on reciprocal recognition and enforcement of judgments.”) Frankly, we don’t recall any case where a foreign legal expert was retained to advise the US Attorney General or vice-versa. In other words, Mr. Dershowitz, where’s the precedent for your intercession?

The irregularity of Dershowitz’ insinuating himself has not stopped him (and ostensibly four other American legal scholars who remained unnamed) from claiming that an indictment on bribery in the 4000 case is unwarranted. It is difficult to discern exactly on what basis the argument was made (citations, sources, cases?); the press has not reported in depth and the authors have not, curiously enough, made their brief public. But as far as we can determine, the arguments are made on two claims: first, that the investigation of the Prime Minister’s alleged pressuring, strong-arming or bribing of the press constitutes a threat to democracy, and second, that there is a lack of precedent for criminalizing his conduct.

Now, the meaning of “democracy” and its history is clearly different in the two countries, as is the method of determining what constitutes bribery. For one thing, criminality in the US (and the UK) is factually determined by juries, while in Israel, this determination is made entirely by the Courts. We don’t really have true separation of powers or checks and balances here in Israel either. Here the Executive and Legislative powers merge. In the US, members of “the opposition” can – and have – torpedoed a Supreme Court nomination, and members of the President’s own party can even oppose his choices or vote against his policy.

And of course, legislators in the US – and UK and virtually all other democracies –report to the people, not to the parties. In fact, compared to the US, the governmental set up in Israel is closer to that which, until recently, existed in parts of Mexico. Actually, no other developed country has a parliament whose members do not answer to the people. The MK’s here are dependent only on pleasing their party bosses. (In return, they get the promise of a Minister spot, replete with office, chauffeur, and staff – and a budget, and let’s not forget that pension. Qualifications needed? None. Can you imagine if the Secretary of Education in the US, once fired, was suddenly gifted with the Secretary of Defense slot? LOL)

Clearly, the concept of democracy in the two countries is different. Nevertheless, Dershowitz has no problem imposing his opinion on Israelis. To his credit, our experience indicates that he has been quite successful in influencing the Anglo-Israeli intelligentsia – who, because they haven’t studied either law or Israeli civics – might be excused for being ensnared. However, in tribute to the freedom of press – perhaps another view is indicated. In this vein, let us recall that the two systems triggered in the PM’s plight are the legal system and the press. These are the only two counterweights to Israeli “democracy.” Without these checks, the government is more reminiscent of rule by ambush, where the mercenaries (aka MKs) accede to their political bosses without regard to their constituents, for after all, they have none.

As to the alleged crimes, simply stated, case 4000 claims that in exchange for (political) capital (i.e., favorable news coverage), the PM (or his familial agents) offered gifts to potential influencers. The definition of bribery is traditionally given as to “persuade (someone) to act in one’s favor, typically illegally or dishonestly, by a gift of money or other inducement.” The decision whether Netanyahu’s conduct rises to the level of constituting that crime is supposed to be made by a court.

It may be that convicting a prime minister for bribery for manipulating the press does impact on democracy – and should qualify for immunity. (To us, it would seem that squelching an independent press – whether by strong-arming, threats, or sweet inducements – does negatively impact on democracy and hence should be vigorously prosecuted). These considerations, however, are the purview of the Supreme Court – not the Attorney General. The role of the prosecutor is to investigate crimes, to determine if the alleged acts are provable, and to assess if they comport with conventional understanding of a crime. The standard whether an indictment will lie – at least in the US – is whether there is “probable cause” to believe the defendant is guilty, a standard far lower than the “beyond a reasonable doubt” needed to convict.

Whether there be overriding jurisprudential considerations which preempt such conviction are not up to the Attorney General. That decision belongs to the court. But whether a court even gets to consider that legal issue will be up to Mandelblit, the very same person to whom Dershowitz seeks to peddle his influence. The ruses Dershowitz uses to dissuade Mandelblit from indicting his buddy include a specious effort to comingle procedure and policy and conflate the role of the court with that of the Attorney General.

Dershowitz’ arguments, assuming they have any validity, should have been brought before any investigation was initiated. One doesn’t wait until mountains of money and tons of time have been expended on investigation- on the eve of an expected indictment (when the alleged perpetrator might have second thoughts about the robustness of his defense) before saying, “shucks, you shouldn’t have even started that investigation to begin with. And if they weren’t brought before the process began, then at least have the good grace to allow Mr. Mandelblit to complete his mission, and, if warranted, bring your claims to the Court at the time of the trial.

Dershowitz goes further. Presumably, he has not reviewed Mandelblit’s records. Nevertheless, he reportedly and unabashedly recommends “that no substantial proof can be brought forth that a law was broken….Instead, this should be decided upon by the public…” In other words, he wants the public – without legal training – and biased by the very press the PM is alleged to have influenced – to make the decision?! Seriously, Mr. Dershowitz? Here’s a quote from the Legal Information Institute at Cornell University: “A criminal prosecution involves the government deciding whether to punish an individual for either an act or an omission.” The government, in case Mr. Dershowitz doesn’t get it, is not the public.

As to the ostensible lack of precedent to sustain an indictment, surely Mr. Dershowitz, you must be joking. The fact that until now pressuring for favorable press by a prime minister has not reached the proportions warranting judicial determination, does not remove that act from consideration for criminal penalty. In other words, simply because no Prime Minister has heretofore been apprehended for quid pro quoing for positive media coverage such that a judicial tribunal has ruled on the issue (the meaning of precedent) cannot seriously be used as a basis to excuse the alleged acts from consideration.

The absence of proof is not disproof, Mr. Dershowitz, and the absence of precedent is not a bar to creating one. As stated by Tushar Kanti Saha in Legal Methods, Legal Systems and Research, “[t]here are times, however, when a court has no precedents to rely on. In these “cases of first impression,” a court may have to draw analogies to other areas of the law to justify its decision.” Nor does the lack of precise standards invalidate the determination of criminal activity. As the Supreme Court profoundly noted regarding pornography, “you know it when you see it.” These are concepts Mr. Dershowitz undoubtedly taught his students, yet he unashamedly comes to Israel to disingenuously claim they don’t exist.

In concluding, Dershowitz validates his arguments by reportedly stating : “[t]he nature of politics, and the relationship of it with media institutions to “‘scratch my back and I will scratch your’ is as Israeli as falafel and as American as apple pie.”

That’s the argument? Sorry, Mr. Dershowitz. Even in the U.S., that “wouldn’t pass the laugh test.” No, we’re not Dershowitz. But Israel isn’t the US, either.

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This post was co-authored with Barbara Pfeffer Billauer JD, PhD, a Research Professor at the Institute of World Politics in Washington DC and Professor in the International Program in Bioethics at the University of Porto, Portugal.

Norman A Bailey PhD was Special Assistant to President Ronald Reagan and served on the staff of the National Security Council and the Office the Director of National Intelligence. He is currently Professor of National Security Studies at Haifa University.