The Alleged Police Misconduct in the Netanyahu Corruption Investigations Illustrates Why Police Should Err on the Side of Caution

In corruption investigations, witness testimony is often crucial. After all, corrupt acts usually take place in secret, and the parties involved rarely leave behind records documenting their illegal deeds. It should therefore come as no surprise that an essential part of the corruption investigations into Israeli Prime Minister Benjamin Netanyahu has been the law enforcement authorities’ attempt to obtain incriminating testimony from those with (allegedly) first-hand knowledge of the corrupt actions, and to turn some of them into “state’s witnesses” (defined by Israeli law as “an accomplice who testifies on behalf of the prosecution after a benefit has been given or promised [to] him [or her],” usually in the form of immunity from prosecution or other alleviations). These efforts have met with some success (see here, here, and here).

However, according to Israeli news outlets whose reporters have gotten access to leaked police transcripts, the Netanyahu investigators may have gone too far. These transcripts suggest that police investigators tried to convince two key witnesses, who themselves were suspected of involvement in the corrupt schemes, to replace their defense attorneys – apparently because these defense attorneys had been advising their clients not to sign a state’s witness agreement (see here and here). (In Israel, defense attorneys are not present in the interrogation room, as suspects do not have a right to have their lawyers present during an interrogation.) One of the witnesses did indeed hire a new attorney and signed a state’s witness agreement, though we can’t be sure if the police investigators’ “suggestion” that he do so was the reason. If the police did pressure these suspects to fire their lawyers, it would be illegal, as Israel’s Supreme Court has held that police may not attempt to interfere with a suspect’s relationship with, or trust in, her attorney. In addition, the transcripts suggest that the police may have illegitimately pressured one of the witnesses during his arrest, threatening that lack of cooperation might result in negative consequences to him and others, and employing highly controversial interrogation tactics (see herehere, and here). At this stage, we do not yet know for sure what actually transpired, and Israel’s Attorney General has ordered that the claims of police misconduct be investigated.

The leaked transcripts and the allegations of severe police misconduct have generally been greeted with wide public criticism that transcended political boundaries. Prime Minister Netanyahu’s supporters and party members, including the Minister of Justice, have (unsurprisingly) been most critical, arguing that the police’s actions offer more proof of Netanyahu’s “persecution” by law enforcement authorities, a claim that has been promoted by Netanyahu almost since the beginning of his investigations (see here and here). Putting that harsh (and unproven) last claim to one side, it’s definitely the case that police investigators have been zealous in their pursuit of Netanyahu and his alleged co-conspirators, and the police may have been, at the very least, pushing the boundaries of what the law allows. This, in my view, is a mistake. To be clear, I do not mean to argue simply that the police should not break the law. That is true, but not many people would claim that the police should disregard the law when fighting corruption. But there’s another view out there, espoused by a considerable number of “tough on corruption” proponents, that law enforcement authorities should “push the envelope” as much as possible, doing everything they can even if their actions are sometimes to be deemed illegal by courts. According to this view, there is no place for softness in the interrogation room, and the police sometimes need to be willing to operate right at the edge of what the law will permit. It is this attitude that I want to argue against.

And this is not only because we should care about the rights of suspects and the fairness of criminal investigations. Indeed, “tough on corruption” proponents ought to worry the most about forms of police aggressiveness that come close to, and may cross, the line into police misconduct. In the Netanyahu case, to stick with that example, the police investigators’ alleged overreach may also prove to be counterproductive to anticorruption efforts, not only putting the investigation in jeopardy but producing long-term adverse consequences for effective anticorruption law enforcement. From the perspective of anticorruption policy, there are a few practical reasons why the police, while investigating allegations of corruption, should fully respect the rights of witnesses, and err on the side of caution: Continue reading

The Limited Effect of Corruption Allegations on Voters: A Brief Analysis of Prime Minister Netanyahu’s Reelection

Last fall, Professor Stephenson alluded to the confusion that many in the anticorruption community feel regarding “voters in many democracies [who] seem to support candidates that are known or reputed to be corrupt.” This confusion was shared by many of my (non-Israeli) colleagues over the last few weeks, upon learning that Benjamin Netanyahu won the April 2019 elections and will serve as Israel’s Prime Minister for a fourth consecutive term (and fifth term overall), despite being suspected of various corruption offenses, including bribery and breach of trust (see here, here, here, and here). (Saying that Netanyahu won the elections is slightly inaccurate in a technical sense, since in Israel voters do not vote directly for the candidate they wish to serve as Prime Minister, but rather for the party they wish to represent them in the parliament (the Knesset). Nonetheless, 26.46% of the voters supported Netanyahu’s Likud party, making it one of the two largest parties in the Knesset; many other voters supported various other right-wing parties that were sure to join Likud to form a government.) Does the fact that so many Israelis cast their ballot in favor of Netanyahu’s party, or other parties sure to back Netanyahu for Prime Minister, mean that Israeli voters simply do not care about corruption?

The short answer is no. The longer answer is that there are three main reasons why voters may have chosen to support Likud despite disapproving of corruption:

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Band-Aids Don’t Fix Bullet Holes: The West Virginia Supreme Court Needs To Address Its Corruption Problem

The headlines wrote themselves: a $32,000 couch (complete with $1,000 worth of throw pillows). A $10,000 payment to a private attorney to “ghostwrite” a court opinion. Illegal overpayments to former colleagues in the hundreds of thousands of dollars. Public outcry erupted in late 2017 when news broke that the justices on the West Virginia Supreme Court of Appeals (the highest court in the state) had spent lavishly on office renovations. Further investigations revealed that some justices had used state-owned vehicles and government credit cards for personal use. Three of the justices were accused of scheming to overpay retired judges who were contracted by the judiciary to fill in on the trial courts in times of vacancy or high caseloads. But the most brazen allegations were leveled against Chief Justice Allen Loughry, who was convicted of wire fraud and obstructing an investigation into his enriching himself at taxpayer expense—despite the modest fame and fortune he (ironically) earned as the author of a book on political corruption in West Virginia.

The pervasiveness and diversity of the misdeeds on the West Virginia Supreme Court of Appeals over the past few years suggest that the corruption was in many ways a cultural problem. But it’s worth noting that the most serious allegations of corruption were likely not actually criminal. A quirk in West Virginia’s law gave the Supreme Court near-total control over its own budget, paving the way for the unchecked spending. Likewise, the intentional overpayments to retired judges reeked of cronyism but may or may not have been illegal; while a statute capped payments to part-time judges, the judiciary still arguably retained ultimate control how and how much to spend.

In response to the revelations of corruption, West Virginia’s government settled on two aggressive solutions. First, in August 2018 the West Virginia House of Delegates approved 11 articles of impeachment against the four justices still on the court and scheduled trials for each of them before the State Senate to determine if they should be removed from office. (The normally five-member court was already down a justice, who resigned in July a few weeks before pleading guilty to federal fraud charges.) The impeachment proceedings were met with outrage by some commentators (see here, here, and here), who saw them as a partisan power grab. Questionable motives aside, the results of the impeachment charges were still a mixed bag: one justice resigned from the Supreme Court before her trial. Another was acquitted of all charges but formally censured by the State Senate in a lopsided vote. The other two justices escaped any impeachment trial after an interim slate of state Supreme Court justices threw out the impeachment charges against their fellow justices on technical grounds. Chief Justice Loughry resigned following conviction in federal court (that makes three resignations overall, if you’re keeping count), and the legislature backed down from further impeachments. Second, after the impeachments, West Virginia’s voters overwhelmingly approved a constitutional amendment that wrested control over the judiciary’s budget away from the Supreme Court, giving the legislature the power to cap the judiciary’s annual spending, so long as the total amount is no less than 85% of the previous year’s budget.

But even if these measures work precisely as planned, the problem in West Virginia is far from solved. The damage to the judiciary’s legitimacy has been severe. A common refrain states that judges “like Caesar’s wife, must not only be virtuous but above suspicion.” And Chief Justice Loughry—of all people—echoed this same bold claim in his book: “Of all the criminal politicians in West Virginia, the group that shatters the confidence of the people the most is a corrupt judiciary…. It is essential that people have the absolute confidence in the integrity and impartiality of our system of justice.”

Unfortunately, the remedies implemented thus far serve only the short-sighted goals of stopping yesterday’s corruption. What is missing in the aftermath of the West Virginia scandals is a concerted effort on rebuilding trust in the judiciary. As previous scandals in the public and private sectors suggest, regaining trust in the judiciary requires public remedial actions by the judiciary itself. Replacing certain justices and adding high level legislative oversight may have been appropriate, even essential, measures, but they don’t necessarily help the court restore its integrity and repair its tarnished reputation. Moreover, focusing exclusively on these externally-imposed remedies may send a signal that the judiciary can’t be trusted to handle its own affairs. This makes it all the more imperative that the judiciary take the initiative in addressing its cultural problem and rebuilding public trust in the courts. A willingness to accept responsibility for past mistakes and engage in transparent self-evaluation will be critical as the West Virginia Supreme Court begins its new term this month. In particular, there are two steps the Court could take that would be helpful: Continue reading

The Case for Abolishing Police Commissioners’ Extendable Terms in Israel

The investigations into corruption allegations against Israel’s Prime Minister Benjamin Netanyahu have received massive attention from the media in Israel and around the world ever since they began in late 2016. In one of the most recent developments, last September Israel’s Minister of Public Security, Gilad Erdan, officially announced his decision not to extend the three-year term of the current head of the Israeli Police, Commissioner Roni Alsheich, by an additional year. Therefore, Alsheich is expected to complete his tenure at the end of this year. Erdan ascribed his decision not to extend Alsheich’s tenure to “differences of opinion and divergent approaches on various issues, some of them substantial and weighty, and which had a significant impact on the public’s trust in the police.” Opposition members and commentators, however, claimed that this decision was driven by the fact that Alsheich has been (or has been perceived as) leading the investigations into Prime Minister Netanyahu. According to the critics, Erdan, a member of Netanyahu’s Likud Party, was acting to please influential senior members of the Likud, as well as Netanyahu himself – an allegation that Erdan denied.

The facts of this particular case are murky. There is no solid evidence to show that Erdan’s decision not to extend Alsheich’s term was related to the latter’s involvement in the Prime Minister’s corruption probe. (In fact, even critics of Erdan’s decision do not seem to claim that Alsheich’s commissionership was flawless.) Nevertheless, this incident highlights a larger institutional flaw in Israel’s current practice of appointing police commissioners for three years with the option for extension.

Israeli law does not actually specify a fixed length for a police commissioner’s term, nor does it mention anything about the potential for term extension. In fact, Israel’s Police Ordinance says only that the commissioner is to be appointed by the government, per the recommendation of the Minister of Public Security. However, over the years it has become an accepted practice (though not without exceptions) that the police commissioner is appointed for a term of three years, and toward the conclusion of that term, the Minister of Public Security decides whether to recommend that the government extend the commissioner’s term by approximately one additional year. This practice should be abolished. Instead, the law should be amended such that the commissioner would be appointed for a fixed, non-extendable term (except in certain emergency situations) – a proposal that has been advocated by commentators and some members of the Knesset (Israel’s parliament), but so far has gone nowhere.

There are three strong arguments, from the perspective of anticorruption policy, for giving the police commissioner a fixed non-extendable term (at this point, regardless of its exact duration): Continue reading