The ongoing criminal probes against Israel’s Prime Minister Benjamin Netanyhahu are reaching their climax. After conducting a marathon four-day pre-indictment hearing for Netanyahu earlier this month, Israel’s Attorney General Avichai Mandelblit reportedly intends to complete his review of the state prosecution’s cases and decide whether to indict Israel’s longest-serving prime minister by the end of next month. The main charges against Netanyahu relate to his associations with media owners.
For three years, illegal leaks from the investigations have dominated the news. The key question – indeed, just about the only question – that has been endlessly discussed is whether or not Mandelblit will end Netanyahu’s political career by indicting him on corruption charges.
The importance of this question is self-evident. On the one hand we have a democratically elected leader. On the other hand, we have unelected state prosecutors who wish to oust him from power by indicting him.
For nearly a year, Israeli politics have been in a state of chaos because of the criminal probes. The probes played a central role in the April Knesset elections and arguably were the primary reason that Netanyahu failed to form a coalition despite his electoral victory. Today the probes and Mandelblit’s deliberations are the primary reason that no one can form a government in the wake of last month’s repeat elections. If Israel holds a third election in the coming months, the probes will again be the central issue determining both the result and the ability of whoever wins to form a government. The center-left Blue and White party is using the probes as an excuse to refuse to join a coalition government with Netanyahu.
While the probes’ impact on Netanyahu’s political future is a key question, and on the composition of the next government is certainly a big deal, neither of these issues is the central matter than hangs in the balance as Mandelblit holds his deliberations.
If Israel’s Attorney General relies on these probes as a means to end Netanyahu’s career, he will do far more than overthrow a political leader. He will embrace a legal doctrine that rejects the very essence of democracy.
This truth has been largely ignored in both the popular and the legal discourse regarding the Netanyahu investigations. It was only sounded in a significant way during the final half hour of Netanyahu’s four-day, 15-hour a day hearing two weeks ago.
During the final half hour of Netanyahu’s hearing, Mandelblit approved his attorneys’ request to permit two senior American jurists – legendary litigator Nathan Lewin and Professor Avi Bell from University of San Diego and Bar Ilan University law schools address him. The two presented the main points raised in a brief they authored with their colleagues Prof. Alan Dershowitz and attorneys Richard Heideman and Joseph Tipograph. Netanyahu’s lawyers submitted their brief to Mandelblit the previous week.
Netanyahu’s lawyers asked that Mandelblit permit the jurists to address him orally at the outset of the premier’s hearing. But he refused. As the hearing’s final day drew to a close, Mandelblit changed his mind. Lewin and Bell were rushed into the hearing room just before it adjourned.
The American lawyers did not address the specific details of the probes against Netanyahu either in their oral or written arguments. Their brief focuses solely on the question at the heart of the two main investigations: Is it permissible to define the provision of positive news coverage to a politician by a news organization as a form of bribery?
Their answer is an unequivocal no. The American jurists warned that if Mandelblit chooses to bow to the position of his prosecutors and accepts that it is permissible to define the provision of positive coverage to a politician by a media organization as bribery, the Attorney General will bring about Israel’s legal isolation throughout the free world.
In their brief, the American legal scholars examined court judgments and legal studies from the United States, Britain, Australia and across Europe. The central issue in all of them was whether it is possible to limit – much less criminalize – relations between media agents and politicians. In all of the judgments and opinions, the answer was the same.
From Oslo to London to Sidney to Washington, the position of courts and senior jurists is that it is not permissible to criminalize, or even to set limits on such relations. This is true in cases where the relations are characterized by quid pro quos and in relations in which no give and take is present.
For instance, in 2010-2011, British Justice Sir Brian Leveson presided over a public inquiry into the practices of the British media in the wake of the News of the World hacking scandal. Among other things, Leveson investigated media mogul Rupert Murdoch’s ties to British prime ministers Margaret Thatcher and Tony Blair as well as to two Australian prime ministers.
The Leveson Report was published in 2012. It spans 2000 pages. As the American jurists noted, the Leveson Report documents instances in which political leaders in both countries agreed to grant regulatory breaks and adopt policies that advanced Murdoch’s interests in exchange for positive coverage during elections. The report, they note includes an “extensive legal analysis” of Murdoch’s relations with politicians.
And yet, the American jurists explained to Mandelblit, the report, “never suggests that Murdoch’s flattering and hostile coverage could be deemed a ‘bribe’” to the British leaders.
The same was the case in Australia.
“Nor have Australia’s prosecutors opened investigations of the relations” between Murdoch and Australian political leaders with whom Murdoch traded horses, the American lawyers wrote.
Bell, Lewin and their colleagues cautioned Mandelblit that the reason the idea of criminalizing ties between politicians and media owners has been rejected is because the action threatens the foundations of democratic societies.
“Prosecution of the Netanyahu case would signal to journalists and media executives that favorable or damaging publicity about a candidate may be investigated by the police and by prosecutors to determine whether the publicity was a quid exchanged for the quo of official action. If the police and prosecutors are empowered to probe the mixed motives of journalists and politicians, they can exercise arbitrary control over essential institutions of democracy,” they warned.
In Israel, and throughout the free world, all politicians and all media organs maintain ties with one another as a matter of course. If Mandelblit accepts State Prosecutor’s position and indicts Netanyahu, practically speaking, he will render all politicians and media outlets in Israel hostage to state prosecutors. At their pleasure, the prosecutors can criminalize their routine practice of politics and journalism. They can investigate anyone, at any time. They can destroy reputations, squeeze politicians and media outlets financially by saddling them with legal fees, and even send them to prison.
And at their pleasure, prosecutors can decide not to investigate politicians and media outlets, and so leave them free to attack their less fortunate colleagues as “criminal suspects,” and “alleged felons.”
Some observers in Israel and worldwide may respond to this state of affairs with a shrug of their shoulders. The prosecutors, after all, say they don’t intend to abuse the power they are seizing. The only thing that concerns them, the prosecutors insist, is protecting the public from politicians and media moguls who reach back room deals on the public’s back.
This attitude of faith in the good will and objectivity of prosecutors is riddled with both substantive and normative drawbacks. Substantively, in democratic societies, the public doesn’t need prosecutors to decide its interests. For that they have the ballot box. If politicians don’t advance their interests as the public defines them, the public elects other politicians to advance those interests.
At the core of the state prosecutors’ desire to arrogate the power to criminalize politics stands a rejection of the democratic principle that the public is the sovereign and the source of political power, and an ambition to replace the public as the sovereign.
The normative drawbacks of the prosecution’s claim to serve as a surrogate for the public have been evident throughout Netanyahu’s investigation. Prosecutors and police investigators have provided anti-Netanyahu reporters with a steady flow of prejudicial leaks from interrogation rooms and from the prosecutions’ internal deliberations.
As these leaks have been broadcast, the public has also been subjected to case after case in which other politicians have made deals with media owners that are substantively identical, and in some cases for more problematic than those Netanyahu is accused of having negotiated. But in all of these instances, police investigators and state prosecutors have stubbornly refused to open investigations.
One of the key claims that state prosecutors have raised throughout their investigations of Netanyahu has been the claim that media owners do not have a legal right to set editorial policy in their publications. In their view, if a media owner blocks the publication of articles that adversely affect their editorial line, the owner is wrongly constraining his writers’ freedom of expression.
The prosecution’s position, which has been rejected by Israeli labor courts, contradicts the right to own private property that stands at the heart of liberal democracy. Just as the owner of a shoe factory has the right to decide what sort of shoes his workers will make, so a media owner has the right to decide the editorial policy of his media outlet.
When Bell and Lewin noted this basic turth in the hearing, one of the prosecutors in the room was annoyed.
“That’s a capitalist position,” she said.
It is certainly legitimate to oppose free market economics. Many members of Israel’s elite look back with longing to the days when socialist and communist newspapers set the tone of the public discourse. But a person who longs for socialism in the name of equality is not more objective than someone who prefers capitalism in the name of freedom and liberty. The prosecutor who rejects the property rights of media owners is not more representative of the public’s interest than the politicians the public elects.
The Israeli establishment has long sought to destroy Netanyahu, the only political leader in Israeli history who was never a member of their club and never sought their approval. They haven’t been able to defeat him at the ballot box and now they have placed their hopes in the politicized state prosecution. If Mandelblit chooses to make their dream a reality, he will not merely get rid of Netanyahu. He will criminalize routine politics and so end Israeli democracy while replacing our political leaders with unelected prosecutors who have richly demonstrated their lack of objectivity and contempt for the public.