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7 Kislev, 5780 - December 5, 2019 | Mordecai Plaut, director Published Weekly
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NEWS
Is Netanyahu Guilty or Not?

by Dei'ah Vedibur Staff

Prime minister Netanyahu
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There is no doubt that the Israeli police and prosecutors, along with their collaborators in the media, were out to get Netanyahu. It is clear that Netanyahu was pursued relentlessly by the authorities, that they sought to accuse him of a crime in advance of finding one. The question is: Did they find one in the end?

Attorney General Mandelblit published a charge sheet of over 60 pages discussing the three cases against Netanyahu. For a start, it was highly unusual.

Attorney Yinon Sartel is a former deputy state prosecutor so he has considerable experience with charge sheets. He says, "The charge sheet is not like the charge sheets I am familiar with. I have read many and written many. The charge sheet against Netanyahu does not meet the legal requirements of the criminal code that discuss these documents. It is very important to note: the charge sheet is supposed to detail the crimes that the accused is said to have committed. No less, but also no more.

"A charge sheet is supposed to describe the arguments of the prosecution, saying: we will argue thus, these facts show the commission of a crime, and if we will succeed in proving them beyond a reasonable doubt, we will ask that the accused be convicted to those crimes that we have listed based on the facts we have noted. That is, whatever evidence there is that can prove the crimes, should be listed in full and not just examples given. The use of the word "examples" shows that this is not the normal way an official charge sheet is written."

In sum, a charge sheet is an official legal document that must satisfy the requirements of the law. These state that it should include just facts. The charge sheet against Netanyahu includes content that is not usually included in such a document.

Attorney General Mandelblit
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Included is an appendix that is entitled, "Examples of the Responses of the Elovitch couple to the demands of the accused Netanyahu to change the reporting of the Walla website." The content of this appendix includes extra-judicial statements, meaning hearsay that was given outside of a court, and can only be admitted in a court after they are once again delivered in a court where the defense can challenge them. At this stage these things are not legally admissible and have no place in a charge sheet.

Why is this important? Sartel explains that witnesses should not be exposed to the testimony and hearsay of other witnesses. Witnesses are not present in court when the testimony of other witnesses is heard. Being exposed to the testimony of other witnesses may lead them to change their own testimony improperly.

Also the judges are not supposed to be exposed to this kind of unvetted testimony in advance of the trial itself. The defense attorneys may successfully challenge the admissibility of such evidence when it is presented in court but it is hard to ignore after having seen it in advance.

Sartel says that the charge sheet reads more like a press release than a dry legal document. For example, the parties are usually referred to as "Accused number 1" and so on, but in this case Netanyahu is constantly mentioned by name. Another unusual aspect is that the charge sheet is supposed to state the court in which it will be filed. In this case it should state that it will be filed in the Jerusalem circuit court. Observers say that the prosecutors hope to file the charges in a Tel Aviv court and thus left it out.

There are three cases known by their numbers: "1000", "2000" and "4000".

The most tenuous is "2000". This is based on discussions between the prime minister and Arnon Moses, the owner of the daily newspaper Yediot Achronot. Moses asked Netanyahu to support legislation that would curtail his competition in newspapers, and offered in return to make his newspaper more friendly to Netanyahu and his family. Netanyahu discussed the possibility with Moses but in fact he did not support the legislation. 43 Knesset members did support the legislation but they were not investigated for breach of trust for getting nice press.

In both this 2000 case and in the 4000 case the Israeli prosecution is breaking new ground, not only for Israel but for the entire world. This is because the charges consider favorable press coverage to be something that is a bribe if offered and given. There is good reason that this has never been thought of in this way before, not in Israel and not in any free country. Politicians and the press are in a constant dialog and interaction. Every politician seeks favorable press coverage and every media outlet spends its entire effort in providing press coverage. The dance that politicians and the media do is constant and is the bread and butter of both. According to the Israeli prosecution's approach, every time a politician is written about favorably, there may well be a bribe in play.

Moses offered Netanyahu a dramatic change in the attitude of his newspaper. According to Netanyahu he had no intention ever of agreeing to the deal, and in fact he did not do what Moses asked and did not in fact get any good press. Senior members of the prosecution argued that the case constituted bribery, though the final charge was "fraud and breach of trust."

Netanyahu is charged even though he did not do what Moses asked, and Moses did not do what he offered. In this and the other cases, Nathan Lewin, a prominent American attorney who has been involved in numerous cases of this kind over his long career, wrote in a blog post in the Times of Israel (May 28, 2019), "Would Netanyahu's conduct amount to criminal offenses under American law? This lawyer believes that no respectable American prosecutor would bring comparable charges on the facts Mandelblit alleges against an elected official in the United States. If he or she did, the charges would be thrown out before trial."

Lewin also wrote: "The "bribe" that was promised and given to Netanyahu according to the second and third charges that Attorney General Mandelblit has specified was favorable publicity, not cash or gifts or property in any form. To this lawyer's knowledge, no public official in the United States has ever been convicted or accused of receiving or soliciting a bribe because he or she was promised or given "favorable publicity" or benefited by how he or she was "reported in the media outlets." Politicians routinely seek favorable publicity, and those who provide it are not thought to be guilty of "bribery" even if the recipients of such publicity give their benefactors favorable treatment."

Case "1000" alleges that Netanyahu did favors for Arnon Milchan and James Packer in exchange for cigars and champagne (valued at more than 700,000 Israeli shekels) that he and Mrs. Netanyahu received from the two businessmen between 2011 and 2016. Milchan and Packer were good friends of the Netanyahu family, and it is not illegal to accept gifts from friends. The prosecution argues that an aggregate value of NIS 700,000 (almost $200,000) is beyond the bounds of friendship, but there is no way to know what the exact boundary is.

Netanyahu's "favors" included assisting Milchan to resolve problems he had with his US visa and helping Milchan persuade the finance ministry that he should get an extended tax-exemption term. There was no allegation that the "favors" produced an illegal result.

The "4000" case argues that the Elovitch couple gave Netanyahu extended favorable press coverage on their website known as Walla!. In exchange Lewin says that the charge sheet "alleges that Netanyahu used his `power and authority' `to promote matters concerning Elovitch's business affairs' and to have subordinate officials `act in abnormal ways.' The charge-sheet does not allege that Netanyahu made any formal ruling, issued any improper decision as Prime Minister (or when he held any other Cabinet office), or committed any corrupt act for the favorable publicity from Elovitch and Walla. Through a subordinate he appointed, Netanyahu allegedly speeded up a favorable decision by the Ministry of Communications and by the Cable and Satellite Broadcasting Council on a merger of Bezeq telecom and Israel's satellite TV provider Yes, in which Elovitch had a substantial financial interest.

The charges in this case rest on the testimony of a state witness, who had been one of Netanyahu's closest associates. The police put an extreme amount of pressure on him to cooperate, including threats to take away all his assets, to "turn his life upside down," and also threatening to reveal that he was having an affair. No court in America would admit testimony from someone who had undergone that kind of questioning.

In an article in the Los Angeles Times (March 7, 2019), Alan Dershowitz, the emeritus Felix Frankfurter Professor of Law at Harvard University, wrote: "Netanyahu is being charged with accepting (or discussing accepting) the "bribe" of better coverage. But if seeking, accepting or expecting better media coverage were an element of crime, there would not be enough prisons in Israel or any other democracy to house the number of politicians who voted a certain way or who did certain favors with the expectation that it would improve their coverage by the media. Politicians are always asking their press aides: "How will my vote or other politicking sit with the media?" There are countless explicit and implicit deals made between politicians and reporters."

 

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