Netanyahu’s great challenge

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Over the weekend, it was reported that Prime Minister Benjamin Netanyahu supports legislation that would change the procedure for declaring war. The bill, supported by the government as well as by Netanyahu’s opponent and former finance minister Yair Lapid, involves implementing lessons learned from past experiences.

Under the suggested law, the government will provide the security cabinet with blanket authority to authorize military operations at the beginning of its tenure. By limiting the number of people involved in decision making regarding actual operations, leaks can be minimized and the element of surprise can be protected.

Given the wide support the bill enjoys, and its substance, the media could have been expected to cover the move in a sober-minded way.

But alas, there was no chance of that happening amid the media circus surrounding the criminal probes of Netanyahu. The desultory probes were recently fortified by the deal Netanyahu’s former chief of staff Ari Harow cut with the prosecution to incriminate his former boss in exchange for leniency in the ongoing corruption probe of Harow’s alleged influence peddling.

Now, with Netanyahu’s sworn enemies in the media and the political Left braying for his immediate resignation, the war powers bill, like everything else he is likely to initiate in the coming months and years, is being reported as nothing more than an attempt to change the subject.

None of the probes are expected to conclude any time soon. Legal experts assess they will stretch well into 2019. This means Netanyahu will be under a cloud of suspicion at least until the end of his current term of office. And that is not good for the country.

So what can Netanyahu do to mitigate the impact of the probes on his ability to do his job? The answer is complicated. On the one hand, it is fairly clear that he won’t be able to do anything to end the probes and not because he is accused of doing terrible things. To the contrary, he is accused of doing ridiculously stupid and harmless things.

The police are conducting two investigations of the prime minister. In the first, they are investigating whether he received too many gifts from his friends. Specifically, they want to know if he received too many cigars from his friend Arnon Milchen and whether he received other presents from other friends.

The second probe relates to a deal he discussed but never made with his arch-nemesis Yediot Aharonot publisher Arnon Mozes under which Mozes would give less hostile coverage of Netanyahu and in exchange, Netanyahu would get Yediot’s pro-Netanyahu competitor Israel Hayom to cut back its circulation. In the event, the talks went nowhere. In 2014 Netanyahu broke up his government and went to early elections in 2015 to prevent a bill – supported by 24 lawmakers in a preliminary vote – which would have bankrupted Israel Hayom from moving forward.

The 24 lawmakers that supported the bill received terrific coverage in Yediot. But none of them – including former justice minister Tzipi Livni – are under investigation. The police’s lack of interest in Livni is particularly notable. She advanced the bill despite the fact that then attorney general Yehuda Weinstein determined it was unconstitutional. She based her decision on a legal opinion produced for her by Yediot’s attorney.

FINALLY, A THIRD investigation doesn’t involve Netanyahu at all. Instead his attorney, confidante and cousin David Shimron is under investigation. And according to investigative reporter Yoav Yitzhak, the probe unraveled this week when the state’s witness was shown to have lied either to police investigators or to his own attorneys about Shimron’s role in brokering a deal for Israel to buy new submarines from Germany.

Netanyahu supported the purchase, indeed, he touted it. His media foes allege that he only supported the purchase, which was opposed by the Defense Ministry, because Shimron was involved.

This allegation itself makes clear the absurdity of the probe.

If the investigation goes forward despite the collapse of its central pillar, and Netanyahu is implicated, there is simply no way to prove that he supported the deal for corrupt reasons when he insists that he supported it because he believes Israel needs a modernized submarine fleet.

In other words, the third investigation is incapable of implicating Netanyahu regardless of its relative merits.

It is important to understand the inherent weakness of the probes because it shows us two important things. First, the investigators and the prosecutors do not care what the public thinks of their investigations. In a damning interview with the online Hebrew-language journal Mida last week, former police investigator chief superintendent Boaz Gutman confirmed the long alleged claim that police and prosecutors are motivated to investigate right-wing politicians rather than left-wing politicians because they want the Left restored to power.

As far as police investigators and prosecutors are concerned, it is they, rather than the public, that should decide who gets to lead Israel.

And this brings us to the second aspect we need to understand about the weakness of the probes. To date, politicized investigators and prosecutors have felt comfortable probing and indicting politicians for political reasons because since 1993, the mere act of indicting a politician has been the professional equivalent of a felony conviction.

In 1993, the activist Supreme Court ruled that then interior minister Arye Deri had to resign due to his recent indictment on corruption charges. The ruling, which had no basis in law, has since enjoyed the status of law. Politicians, who are later exonerated of all criminal charges, have repeatedly been forced from office, their reputations in tatters.

The power to remove politicians from office simply by indicting them gives the prosecution absolute power over the political system. The fear of indictment, perhaps more than anything else, has been sufficient to stop every significant attempt to pass laws to reform the unchecked legal system.

In recent weeks, coalition chairman MK David Bitan has told the media that Netanyahu has pledged not to resign if indicted in light of the trivial nature of the probes. Netanyahu’s ability to remain in his position, in opposition to the non-binding norm dictated by the Supreme Court in 1993, will be a function of the public’s view of him and of the investigations against him. And if Netanyahu is strong enough to stay, then his intention not to fold will have a salutary impact on the fairness of the investigations against him.

If the prosecutors realize they will have to win a case against a sitting prime minister rather than one they have already forced from office in disgrace, their decision about whether or not to indict Netanyahu will be based far more on the investigations’ findings and far less on their political views than in the past.

Although prosecutors do not care what the public thinks of them, they do care what their colleagues think of them. And if they indict a sitting prime minister and then fail to convict him while he is still in office and popular, their colleagues will not think well of them.

So it all boils down to governing. But how should Netanyahu govern?

If Netanyahu follows the lead set by prime minister Ariel Sharon when he and his sons were under investigation, and abandons his political base to appease the Left, he will harm his chances of remaining in power. Netanyahu will become as unpopular as Ehud Olmert was when he was indicted. He will not avoid indictment. And he will not be reelected.

If on the other hand Netanyahu is loyal to his voters and implements the Right’s policy on Judea and Samaria – namely, applying Israeli law to Area C of Judea and Samaria in anticipation of the era that will begin when 82-year-old PLO chief Mahmoud Abbas dies – then he will not only be able to stay in office if indicted, he will win the next elections even if he is still enmeshed in criminal probes.

Originally published in The Jerusalem Post.

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