The criminal trial of Israeli Prime Minister Netanyahu, on multiple corruption charges, opened yesterday, only ten days after the formation of a new government, and after years of police investigations, indictment procedures, and three rounds of early general elections. The trial is an unprecedented event in Israel, and one of the few examples anywhere in the world where a sitting head of government has stood trial on criminal charges in his own country. This situation poses unique challenges. On the one hand, the court must ensure that Netanyahu’s rights, as a criminal defendant, are respected. That said, though, some adjustments will have to be made to secure both the fairness of the trial and the integrity of Israeli executive and judicial branches, given that as the trial unfolds, Netanyahu will continue to serve as Prime Minister.
- First and foremost, Netanyahu must forfeit or delegate all authorities that may affect the integrity of the judicial process. Most importantly, he must refrain from interfering with appointments of judges and senior public servants in the Ministry of Justice, such as the attorney general and the solicitor general. Earlier this month, when the Israeli Supreme Court ruled that an individual who had been criminally indicted could nonetheless serve as prime minister—the ruling that paved the way for Netanyahu to form a new government—the Court favorably noted a statement by the attorney general that he intended to present Netanyahu with a conflict of interest agreement to limit the Prime Minister’s authorities during the course of the trial. It would have been better if the Court had insisted on this condition as an explicit prerequisite for Netanyahu to form a government; having failed to do so, it is now up to the Supreme Court, together with the attorney general, to make sure that Netanyahu goes through with the agreement, and that the agreement is sufficiently broad to prevent the most severe conflicts of interest. Most importantly, Netanyahu should be required to delegate the relevant authorities to ministers from other parties in his coalition, rather than to members of his own party. Otherwise, anything stipulated by the agreement will not be worth the paper it is written on. This was already demonstrated a couple of months ago when Netanyahu fired the Minister of Justice (of a different party) for no apparent reason and elevated a junior member of his own party with no prior ministerial experience to the prestigious office. Soon thereafter, the new minister attempted (unlawfully) to appoint a solicitor general of his liking—a move that was blocked by the Supreme Court—and also tried to launch a criminal investigation into debunked conspiracy theories about actions of the attorney general in his prior public position.
- As to the criminal procedure, the trial court must take a proactive approach in managing the trial to prevent it from turning into a political show. The court must recognize that the defense’s arguments will likely feature political as well as legal arguments, often aimed at the public more than the court. The court has already started on the right foot, denying the defense’s preliminary motion to allow recording and live broadcasting of the trial. Denying this motion required a measure of public courage from the court (especially since the prosecution and the attorney general did not object to it, quite possibly in an effort not to fuel Netanyahu’s rampage against the attorney general). The judges should persist in this path and prevent the trial from becoming a political circus as future motions are filed.
- Moreover, the court should do everything in its power to conclude the trial as swiftly as possible without infringing on Netanyahu’s procedural rights. It is in Netanyahu’s political interest to prolong the trial as much as possible, which would assist him in stamping out internal dissent within his party, and would allow him to serve out his term as Prime Minister. (Should he be convicted, remaining in office would likely become politically infeasible.) Netanyahu has already requested numerous postponements during the period of police questioning and pre-indictment hearings. The Covid-19 pandemic further delayed the start of the trial, and while some delay was understandable, many commentators believe that Netanyahu extended emergency measures longer than necessary in order to further delay his trial. But prolonging the trial may have a devastating impact on Israeli society and the public trust in legal and political institutions. Going forward, the court must scrutinize every request to postpone court sessions with extreme care, and limit delays to truly unexpected circumstances and only to the extent necessary.
These are only some of the things that the court and the attorney general should keep in mind going forward. Netanyahu’s insistence on clinging to power even in the shadow of a credible criminal indictment for corrupt abuses of his office poses a deep threat to the fabric of Israeli society. As Netanyahu himself famously said in 2008 about the former Prime Minister Olmert, who was also criminally indicted on corruption charges (but promptly resigned):
A prime minister steeped up to his neck in investigations doesn’t have a moral or public mandate to make such fateful decisions regarding the State of Israel. There is a real, not unfounded fear that he will make decisions based on his own interests of political survivability rather than the national interest.
Hi Haggai. Thank you very much for this interesting post. The criminal trial of a sitting chief of the executive branch usually threatens not only the integrity of the judicial proceedings, but also the political stability of the respective country. That is the reason why many constitutions contain mechanisms to avoid this kind of situation. In Brazil, the President cannot be tried for crimes perpetrated before his or her term. The Brazilian Supreme Court understands that in those situations, the President may be investigated, but may not be indicted. The proceedings and the statute of limitations are suspended after the end of the investigations. If the criminal offense is committed during the President’s term, he or she may be investigated and indicted by the Prosecutor General, but the indictment must be approved by the Congress. The lack of this approval leads to the same solution: suspension of the proceedings and of the statute of limitations until the end of the President’s term. However, recent events in Brazil have demonstrated that even investigations and indictments against sitting Presidents are sufficient to cause loose of faith in judicial proceedings and political instability. Perhaps, a possible solution to this kind of problem is the institution of an international anticorruption court to handle those and other similar cases.
Thanks for this input! It’s very interesting. Supending criminal procedures always worries me, as it seems to me that it only gives the suspected president/prime minister greater incentives to cling onto power by various problematic methods, as they know that the end of their term will bring about the start of their criminal procedure