After three years of investigations, it’s likely that Benjamin Netanyahu will soon become Israel’s first sitting prime minister to be indicted. The indictment, which has already been published by the Attorney General though not yet submitted to the court, accuses Netanyahu of several crimes of corruption. One of the most serious allegations (commonly referred to as “Case 4000”) is that when Netanyahu served as both Prime Minister and the Minister of Communications, he took steps to promote a deregulation of the telecom sector that would greatly benefit Shaul Elovitch, the controlling shareholder of Bezeq, one of Israel’s largest telecom firms. In particular, Netanyahu is alleged to have pushed for a decision allowing Bezeq to merge with another Israeli telecom giant. In return, Netanyahu allegedly received favorable media coverage from a news company controlled by Mr. Elovitch during two general elections.
Netanyahu has yet to submit a formal statement of defense to the charges, but given his countless press releases and interviews, it’s easy to predict what he will say. In particular, Netanyahu and his spokespersons have repeatedly argued that “decisions Netanyahu made regarding the telecom giant when he was communications minister were reasonable, had the support of the ministry’s professionals and were approved by the legal gatekeepers” (emphasis added). It’s not clear at this stage whether it is in fact true that the professionals in the Ministry of Communications also supported the merger. But suppose it were true. Why would it matter? Why would this be a defense to the bribery charges? Netanyahu and his supporters have remained vague, perhaps intentionally so, on this point. But there seem to be three possible arguments that he might advance as to why the Ministry professional staff’s (alleged) agreement with his position supplies a defense to the bribery allegation. None of these arguments has merit, and the court should dismiss all of them.
- First, Netanyahu might argue that the agreement of the Ministry professional staff with the decision to allow the merger means that Elovitch did not actually receive anything of value from Netanyahu, since the same decision would have been made regardless of Netanyahu’s intervention. But this makes little sense, as Elovitch could not have known in advance what would be the professional staff’s position would end up being. (And in fact it appears there was a division of opinion within the professional staff.) At the point when the allegedly corrupt deal was made, Elovitch would have recognized that having the prime minister intervene in the process undoubtedly increased the probability of securing a favorable decision. In other words, even if the probability that the regulation would pass without Netanyahu’s intervention was greater than 0%, and even if Netanyahu’s intervention did not increase it to 100%, it still created a probabilistic benefit of great value to Elovitch. While the exact magnitude of the benefit is disputed, even under the conservative estimation, a minor increase in the probability of success would have been worth the equivalent to millions of dollars to Elovitch.
- Second, Netanyahu may try to use the professional staff’s agreement with the merger approval decision to demonstrate that Netanyahu lacked any corrupt intent in his support for the merger; the argument, in other words, is that the agreement of the professional staff shows that the merger was in fact in the public interest, and that in supporting the merger Netanyahu intended to promote the benefit of the public rather than the benefit of Elovitch. The court should not grant this evidence more than nominal weight. First, the position of the professional rank is only circumstantial to proving Netanyahu’s intent or lack thereof. Second, even if Netanyahu intended to benefit the public as well as Elovitch, this would still constitute a crime of bribery under Israeli law, if the other elements of that crime are established. Third, there is concrete counter-evidence that Netanyahu demanded from Elovitch favorable media coverage, and Elovitch agreed and delivered it. It is highly unlikely that a businessman such as Elovitch would promise such a thing without expecting some quid pro quo, which under the circumstances could only be met by the regulation that was passed.
- Third, and building on that last point, Netanyahu might try to argue that the position of the Ministry professional staff shows that there was no quid pro quo. More specifically, Netanyahu may argue that the fact that the professional staff supported the merger shows that his relationship with Elovitch did not drive his actions, but rather that he would have supported the merger regardless. The court should be particularly cautious in considering these types of claims, especially when it comes to cases of grand corruption involving high-level politicians, rather than low-level bureaucrats. A sophisticated politician contemplating whether to abuse his or her power is likely to be cautious about how they exert their influence over decision-making, and to try to maintain plausible deniability by suggesting alternative justifications for their actions. Courts and citizens ought to be skeptical of such claims. While the court should be mindful of other circumstances that might justify Netanyahu’s actions, any politician engaging in corrupt behavior is likely to ensure that such alternative justifications exist, and the court should adjust the weight of this evidence downward, accordingly.
To conclude, the factual assertion that the professional staff was in favor of the regulation, even if proven, does not support any valid legal defense for Netanyahu in this case. It is certainly possible that this line of defense is aimed at public opinion rather than the court. Given the fact that Netanyahu recently failed in passing legislation that would grant him immunity from prosecution, and that Israel may be heading towards a record third round of general elections in less than a year (because no party has yet succeeded in forming a coalition), it seems that Netanyahu’s political and legal future could still be determined by public opinion. Here too, Netanyahu’s arguments should carry little weight. If a wealthy businessman promised the prime minister favorable news coverage in exchange for supporting a regulatory decision that would net the businessman a huge profit, this is a bribe—in law as well as in common understanding. The fact that the professional staff ended up supporting the regulatory decision as well, even if true, doesn’t make the acceptance of the bribe any less corrupt.