Published: 21 May 2020
Last updated: 4 March 2024
THE TRIAL HASN'T BEGUN, yet the defence team's plan is clear. Since Prince Minister Benjamin Netanyahu was first investigated, and subsequently, in November 2019, indicted on charges of bribery, fraud, and breach of trust, and across three election campaigns, he has unfailingly used the hackneyed, yet effective cliché: the best defence is an offence.
For Netanyahu, this has meant attacking his accusers. The nastier and the more menacing the attacks, the better for him politically, and the long-term implications for Israeli society be damned.
"Nothing will come of this, because this is about nothing," Netanyahu declared when the investigations were first made public. He repeats this soundbite at every opportunity, always with an aggressive smirk, denying he has done anything wrong and insisting that the investigations, then the indictments and now the trial are a witch hunt by the left-wing parties, media, and state prosecutors.
But something has come of this. On Sunday, his long-awaited trial is scheduled to begin. Israel's first sitting prime minister to be tried in court, Netanyahu will have stand quietly as the panel of three judges reads a summary of the charges against him.
The trial will be conducted in district court in Jerusalem. A panel of judges will listen to his defence but Netanyahu will be speaking to his political supporters. The legal defence will be based on evidence; the public one will be based on image and perception.
To protect that image, Netanyahu's lawyers filed a request earlier this week, asking to be exempted from attending the first day of the trial, when he will be arraigned and the criminal charges will be formally read. His lawyers argued the costs involved in providing adequate security for the prime minister are not justified. And anyway, they contended, the reading of the charges is merely a technicality.
And, anyway, he has a permanent security detail – which not only guards him, but his family members as well, and has even been used to "protect" his adult son as he visits strip clubs.
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Concerns about expense and security had nothing to do with the request for exemption. This request was about image control. Throughout his political career, Netanyahu has been able to control the staging of events, but the court room won't be his stage. He won't be able to wink and sneer to his constituency, and the judges, not he, have complete authority over the manner in which the trial is conducted.
Netanyahu is Israel's longest serving prime minister and he seems to truly believe that he is not merely a democratically elected leader but that he is more like a king or an emperor. In his own eyes, he is outstanding and unique, and should therefore be exalted. Because, after all, kings are not supposed to be put on trial and emperors aren't required to be accountable – not to the public, and certainly not to mere mortal judges who are anyway, he contends, biased and treacherous.
His team knows very well that the opening of his trial is not merely a technicality. It is a symbolic, powerful moment. Netanyahu's first appearance before the judges will not be televised – but the image will be imprinted in public perception.
He's still hoping that he can turn that image to his advantage, hoping to “present a picture of Prime Minister Netanyahu in the defendant’s seat as a continuation of the campaign" of siding with the Left against the nation’s leader.
Netanyahu's lawyers and supporters have referred to the judiciary as "violent" and "obscene." His son, Yair Netanyahu, has compared the judges to the “Illuminati”. His supporters, including some who are now ministers in the newly-formed government, have openly stated that they would not obey the court's rulings if they are not to their liking.
In recent days, they have launched an attack on Attorney General Avichai Mendelblit, the man appointed by Netanyahu who is responsible for bringing the indictments against him. Before leaving his position as justice minister, Netanyahu-appointee Amir Ohana wrote on FB that the Attorney General is guilty of "conflicts of interests" and “ominous motives".
Israel’s Justice Ministry has decided to assign a security detail to Deputy State Prosecutor Liat Ben Ari, the chief prosecutor in this trial, and she will arrive at the court on Sunday accompanied by bodyguards. Last week, Mandelblit filed a police complaint after receiving threats on his personal phone.
The damage caused by this offensive defence strategy will run deep, warns Yuval Shany, Vice President of the Israel Democracy Institute, an independent think tank in Jerusalem. "On the one hand, the decision by the court to demand that Netanyahu be personally present can be seen as a symbolic reaffirmation of the principle of equality before the law," he says.
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"On the other hand, until now, when facing serious charges, all ministers and other civil servants have resigned, been forced to resign, or voted out of office. This is an exceptional situation in which the Prime Minister has refused to resign and the political system has come to terms with the idea that he can be tried while in office.
"I am worried," Shany continues," about the sustainability of this situation and how it will affect the rule of law and the fight against corruption. A civil servant, albeit the prime minister, has been exempted from the law that applies to all other civil servants. This is a significant erosion of the principle of equality before the law."
Furthermore, Shany continues, there is a basic incompatibility between status of a prime minister who is responsible for countless decisions that affect the country and a prime minister who is fighting to weaken the authorities that are trying him.
"This situation casts a cloud on everything he does – from the appointment of ministers to the allocation of public funds. Even a declaration of war - the public would be forced to ask, is this decision being made because of a real security threat or is it an attempt, for example, to distract public opinion."
According to Dr Amir Fuchs, a researcher at the Israel Democracy Institute, the trial will involve hundreds of witnesses and thousands of crates of evidence, and he also anticipates that the defence team will try to employ all sorts of legal delay tactics. Furthermore, following the verdict, both sides have the possibility of appealing to the supreme court. Therefore, the trial is likely to continue "for years".
The conflict between the executive branch and law enforcement authorities is leading to a significant erosion of public trust in both the government and the legal system.
How will Netanyahu be able to function as prime minister all this time? Fuchs notes that it is up to the judges to determine how often Netanyahu must be personally present at the hearings, and when a defendant is well represented and there is no danger of harming his defence, he is usually exempted for attending all of the sessions.
However, he continues, to provide that defence the lawyers will have to meet with and update their client daily, and this will take a long time. "Even if he is not physically there, the prime minister will have to be inside the process, which, one might argue, could keep him from fulfilling his duties. Under Israeli law, a prime minister can be forced to suspend himself if he is no longer competent to fulfil his role.
"There are some case decisions suggesting that this could be applied to an acute conflict of interest. But politically, it would be a very difficult call to make."
Whatever happens, says Shany, "the conflict between the executive branch and law enforcement authorities is leading to a significant erosion of public trust in both the government and the legal system. You have to pick sides, which politicises the system that, for many years, was regarded to be above the political fray. We are on a very negative trajectory."
READ MORE
Court rejects Netanyahu’s request to skip opening of his corruption trial Sunday (Times of Israel)
Sources close to PM confirm he’ll attend hearing, after judges find no grounds to exempt him from defendant’s obligation to hear readout of indictment
Prosecutor in Netanyahu cases gets security detail ahead of Sunday’s trial (Haaretz)
Prosecutor Liat Ben Ari may also use different court entrance for her own safety; move comes days after AG files police complaint over threats to his life
Israel advances bill for Shin Bet tracking of coronavirus carriers' phones (Al-Monitor)
Israel’s government publishes a proposal for a law with a sunset date of three months that would enable the Shin Bet to track where the mobile phones of coronavirus carriers have been
Photo: Benjamin Netanyahu at the Knesset after the swearing-in of the new government, May 17 (Alex Kolomoisky/Pool)
