INTO THE FRAY: Netanyahu vs Olmert—Comparing chalk & cheese

By MARTIN SHERMAN

While it may be inappropriate that someone under criminal indictment should be a candidate for, or serve, as prime minister, it is far more inappropriate that he/she be precluded from doing so by abuse of the legal system 

We have a prime minister mired up to his neck in investigations. He has no public or moral mandate to determine matters of such crucial importance for the State of Israel. There is concern—which I must say, is real and not unfounded—that he will make decisions based on his own self-interest of political survival, and not on that of the national interest…because he is in such profoundly deep distressBenjamin Netanyahu, Channel 2 News, 2008.

Q: The determination that positive media coverage should be considered “bribery” is a legal precedent. Is it appropriate to set such a precedent for the first time in a case against a prime minister?

A: Every legal precedent has to begin at some point. So, just because it involves the prime minister, we should delay the precedent for another time? Shai Nitzan, Israel’s State Prosecutor, who headed the Netanyahu criminal probe, on the decision to indict PM Benjamin Netanyahu for bribery, on unprecedented charges, in answer to interview question May 8, 2019. 

…we’re seeing the weaponization of criminal justice for political purposes… Alan Dershowitz, professor emeritus, Harvard Law School, on the Netanyahu investigation, November 18, 2019

There is not enough proof of a criminal offense. I think it is very dangerous to start indicting people based on negotiations with newspapers. That’s what politicians do…To start interfering in the relationship between media and the government poses a tremendous danger to free speech and…to democracy, Alan Dershowitz, December 27, 2018 .

The Netanyahu trial is once again underway, as the prosecution slowly works its way through its 300-long list of witnesses. It might yet be early days, but so far, they hardly seemed to have made a compelling case for conviction.

More inappropriate than an indicted candidate

However, in the echo chamber of the overwhelmingly Bibi-phobic mainstream media, much has been made of Netanyahu’s 2008 demand that then-incumbent PM, Ehud Olmert, resign (see introductory excerpt)—because of his legal predicament.

Ostensibly, this creates an understandably awkward situation for Netanyahu, exposing him to charges of blatant hypocrisy and double standards—and provides grist for the mill of those wishing to introduce legislation barring anyone, who has been criminally indicted, from running for prime minister.

Clearly, this is not a demand that can—apriori—be dismissed as totally unreasonable. After all, who would not recoil at the prospect of anyone, under a credible indictment of rape, murder, arson, assault, or armed robbery, presenting his candidacy for the premiership and possibly becoming the elected leader of the nation.

So, understandably, while for many it may seem inappropriate that an individual under criminal indictment be permitted to run for, or hold the office of, prime minister, it is far more inappropriate that he/she be precluded/removed from office by abuse and distortion of the legal system.

All this ought to be born in mind by anyone trying to draw any equivalence between the case of Ehud Olmert, and that of Netanyahu.

Comparing chalk & cheese

As readers will doubtless recall, Olmert, who served as Israel’s Prime Minister from 2006 to 2009, was imprisoned for 16 months after being found guilty of bribery and obstruction of justice, offenses related to his term as mayor of Jerusalem and as minister of industry and trade.

However, in stark contrast to Netanyahu, Olmert was indicted—and convicted on the basis of the prevailing interpretation of the law! No “creative” legal precedents were needed to be invoked to prosecute him. With Olmert, there were no claims of selective prosecution, complaints of extortive coercion of state witnesses, or allegations of investigative misconduct by the police. Moreover, Olmert was strongly pressured by members of both his party and his coalition partners to resign. Netanyahu, on the other hand, enjoys overwhelming support as leader of his Likud party and unequivocal approval of numerous like-minded Knesset factions.

But perhaps the starkest difference—and arguably the most compelling in terms of the foundations of democratic governance—is the massive difference in support the two men had from the Israeli public.

Indeed, public support for Olmert was beginning to crater even before the full impact of his legal woes took effect. Thus, in early 2007, his favorability was in single digits—with one poll putting it as low as 3%. By mid-2008, 70% of the public thought he should go.” 

Despite anti-Bibi bile

With Netanyahu, the picture is dramatically different!

Despite being saturated with toxic Bibiphobic bile and force-fed with anti-Netanyahu venom by much the mainstream media, the public’s support for him soared, making him by far the most popular politician in Israel—even though his indictment was well known, and thus, already discounted in the figures for his immense popularity. Indeed, recent polls see a Netanyahu-led Likud as easily the biggest party, with up to 36 Knesset seats, almost double its nearest rival, and dwarfing all the other factions, almost none of whom reach a double-digit tally of seats.

In terms of personal stature with the electorate, Netanyahu outstripped all his competitors for the individual most qualified to serve as prime minister by huge margins—according to some polls, by more than double his nearest rival, Yair Lapid, and more than quadruple the current incumbent, Naftali Bennett.

It is important to reiterate here that this sustained popularity endured in spite of the fact that the criminal proceedings against Netanyahu were well underway and the substance of the accusations against him was widely known common knowledge—which in itself seems to constitute a grave public indictment of the nation’s legal system and a grim picture of the credence the public accredits it.

Weaponizing the legal system for partisan political purposes

But apart from the ringing post-indictment public endorsement of Netanyahu, there are other factors that set the Olmert and Netanyahu cases apart.

For example, while in the Olmert case, there are no allegations of selective enforcement, in which similar violations by others were left unindicted, this is far from true with Netanyahu. Indeed, in his case, there is perturbing and persuasive evidence of selective enforcement, in which dozens of incumbent politicians undertook identical—or at least, very similar–pursuit of favorable coverage with nary an indictment being filed against any of them.

Another feature, which underscores the qualitative chasm between the cases of Olmert and Netanyahu touches on how the police probes were conducted and how prosecutory evidence was collected.

With Olmert, there were no significant instances of police investigative misconduct or malign mistreatment of witnesses. Indeed, in Olmert’s case, the two major prosecution witnesses, who played a major part in bringing about his conviction, came forward of their own volition. The one, died before the trial ended, the other, Olmert’s longtime personal assistant, volunteered testimony against him—after she felt abandoned by him and signed a plea bargain for a reduced sentence for her involvement in Olmert-related offenses.

With Netanyahu, the situation differed drastically. Indeed, arguably even more troubling than the allegations of selective enforcement are persistent reports of police misconduct and mistreatment, and extortion of witnesses to obtain incriminating statements against Netanyahu and other co-defendants.

Thus, Netanyahu-associates, originally stoutly supportive of him, were reportedly coerced into becoming state witnesses for the prosecution after police compelled an incarcerated interrogatee to sleep on a flea-infested mattress, threatened to reveal an extramarital affair to a detainee’s spouse, and attempted to enlist the son of a co-defendant to persuade his father to fire his attorney and hire a more compliant one.

Ill-begotten & ill-conceived

But perhaps the most substantial and far-reaching difference between the legal sagas of Olmert and Netanyahu is the impact each one is likely to have on the Israeli legal establishment and its enforcement agencies.

Thus, while in Olmert’s case, the investigations, the trial, and the conviction of the relatively unpopular prime minister did not stir up a significantly negative impact on the credence and reputation of the bodies involved in the police investigation, in the resultant indictment, and in the consequent conviction, this is highly unlikely to be so in Netanyahu’s case.

After all, if he is forced to step down under the weight of what is perceived by many—both professional jurists and concerned laymen—“dubious” (to be charitable) indictments, this could well result in a severe blow to the fabric of Israeli democracy.

For it will demonstrate that any democratically elected leader—no matter how popular with the electorate or how impressive his achievements—can be deposed by the vindictive whims of a politically adversarial civil society elite—and the (ab)use of its unelected position of power and privilege—to circumvent the will of the people.

Indeed, one thing is beyond doubt: No good result can come out of these ill-begotten and ill-conceived indictments.

If Netanyahu is found guilty, roughly half the Israeli public will feel that there has been a gross miscarriage of justice—and the already tenuous public trust in Israel’s system of law and order will be eroded even further.

On the other hand, if he is acquitted, roughly half (the other half) of the Israeli public will feel that there has been a gross miscarriage of justice—and the already tenuous faith in Israel’s system of law and order will be denuded even further.

Among the biggest losers will be those who launched this reckless and needless initiative in the first place.

Regrettably, the public mistrust, which it will generate in them, will certainly be richly deserved.

Martin Sherman is the founder & executive director of the Israel Institute for Strategic Studies

November 4, 2021 | 12 Comments »

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12 Comments / 12 Comments

  1. Sorry I must have misread, I assumed this was your statement. As for the comment about Ministries I did not make a specific statement of fact, but a speculation which seems to me to be reasonable.

    I got fed up doing “research” which can only come from then news outlets, years ago already. It began with “borrlegate”, to “Champagne and cigar gate”, to “garden furniture gate”. to “ice cream gate”, to overpriced dinners gate”, etc,etc all disgustingly partisan, lying and frivolous.

    I zoomed in on Mandelblit pouncing on Netanyahu with indictments a very short time before the elections in which he had his biggest majority projection ever. This has been long forgotten.

    That the indictments were specious, and especially manufactured to get at Netanyahu and that this has been emphasized by every prominent jurist in the world, many times over and over.

    Nothing is being said about the news outlets’ reports of Mandelblit’s offer, that he would drop the indictments if Netanyahu stepped down as PM.

  2. Opposing Bezeq’s purchase of “YES” because they were in line to make substantial profits from it…etc Is that a crime now, to buy something so as to make a profit….The reason for ALAL business deals from time immemorial (to borrow from Joan Peters)

    This indictment is a joke. and Berger is an antagonistic witness, prejudiced and discredited before he “testifies”………….

  3. The criminal trial of Benjamin Netanyahu pivoted Tuesday from the favors the former prime minister is alleged to have received to the benefits prosecutors say he gave the Bezeq telecommunications company in return, misusing his official position.

    Taking the stand after six months of testimony from executives and editors at the Walla news site, former Communications Ministry director-general Avi Berger became the first witness in the so-called Case 4000 to allege in court that Netanyahu had abused his position as prime minister.

    In the case, one of three against the former premier, Netanyahu is charged with illicitly and lucratively benefiting the business interests of Bezeq’s controlling shareholder, Shaul Elovitch, in exchange for positive coverage on the Elovitch-owned Walla news website. He is accused of abusing his powers when he served as both prime minister and communications minister from 2014 to 2017.

    Netanyahu faces charges of bribery, fraud, and breach of trust, while Elovitch and his wife have been charged with bribery. All three defendants deny wrongdoing.

    The allegations of misconduct go back to when Netanyahu replaced Gilad Erdan as communications minister in November 2014, in what critics saw as a power grab to give him increased control over the media and telecom industries. He subsequently fired Berger over the phone, in May 2015, and appointed long-time ally and former campaign manager Shlomo Filber in his stead.

    The indictment claims the move, as well as Netanyahu’s insistence that the 2015 coalition agreements include a provision giving him “sole control” over media matters, was aimed at creating a less confrontational stance vis-à-vis Bezeq, a company Berger had sought to limit.
    Then-prime minister Benjamin Netanyahu seen as he arrives for a court hearing at the District Court in Jerusalem on April 5, 2021. (Oren Ben Hakoon/POOL)

    Berger was advancing a radical reform of the Israeli telecommunications industry that would have opened up the internet market, overwhelmingly controlled by Bezeq, to competition, and that aimed to ensure the efficient and speedy rollout of cutting-edge internet infrastructure.

    Specifically, Berger had opposed Bezeq’s purchase of the Yes satellite broadcaster from Elovitch’s Eurocom Group, which the businessman stood to earn substantially from.

    I had provided the link to the article I am quoted above previously. Edgar & Adam it appears neither of you bothered to read the articles linked based on your comments to me. Reading only articles that makes one comfortable does not allow a true understanding of what has been charged and alleged.
    https://www.timesofisrael.com/netanyahu-trial-turns-to-alleged-benefits-he-provided-bezeq-telecom-company/

  4. @Edgar I do not accuse Bibi but that is what is being alleged and charged. Actually on your other point you are 100% wrong. If one fixes regulations in a quid quo pro that is a crime. That is what the charges are about.

    The case is complicated and if one wants to truly become knowledgeable on it they will need to do some research. There are many articles on it. There have been countless news discussions of it in Israel also.

    @ Adam, click on the red (in my comment on the fiber optic cables) it is the link.

  5. BEAR

    You accuse Netanyahu of “taking over” the Communications Ministry so as to control his getting better coverage etc. You have no proof and should npot be shooting srrows into the wind. There were many Ministries that Netanyahu “took over” because there were already too many Ministers, and the real work was done by the Civil Servants anyway, and it saved the country from much expense like Ministerial staff, protection, expensive cars etc etc etcc.

    This is unlike you, usually cautious as to what you aver. PLUS it certainly could never be remotely classed as a CRIMINAL ACT even if true.

  6. BEAR

    You accuse Netanyahu of “taking over” the Communications Ministry so as to control his getting better coverage etc. You have no proof and should not be shooting srrows into the wind. There were many Ministries that Netanyahu “took over” because there were already too many Ministers, and the real work was done by the Civil Servants anyway, and it saved the country from much expense like Ministerial staff, protection, expensive cars etc etc etcc.

    |Power Corrupts…so he’s automatically a crook Israel’s greatest ever statesman a fervent Zionist and much more……….blah blah………….so ….???

    This is unlike you, usually cautious as to what you aver. PLUS it certainly could never be remotely classed as a CRIMINAL ACT even if true.

  7. @Bear. Let’s hope that the trial does bring out the facts, whatever they are. I haven’t heard or read that any of the regulatory changes approved by Netanyahu had anything to do with fiber optic cables. Perhaps you could give us the source for this report and a link.

    Caroline Glick claims that all of the regulatory changes that Bibi signed in administrative law were highly recommended for his approval by the civil servants who investigated them for more than two years before Netanyahu consented to them. I have not read anyone in the Israeli press who has contradicted her on this particular point. She also claimed that once the civil servants in the department with jurisdiction over the regulations in question approve of a proposed change in them, after lengthy investigation and consultation with experts in the field, the approval of the minister has always been considered a formality and he/she rarely refuses to approve them. If that was the case with the regulatory changes requested by Bezeq and eventually approved by the mnistry of telecommunications, that they were recommended by the civil service in this government ministry, then Netanyahu’s signingonto them reasonably be regarded as a crime, whether or not the regulatory changes.

    That would still be true even if subsequently the approved changes have proved to have unintended undesireable consequences.

  8. Power Corrupts. Bibi was Prime Minister for 12 consecutive years. He took over the Communications Ministry also to be able to get favorable coverage from Walla in a quid quo pro.

    Bezeq owns Walla the publication which Bibi got coverage directed either by himself or his wife, which amounted to free advertising. Beqeq obtained changes of regulations which benefited them financially.

    See the following article to understand better what is going on. Adam your comment is actually conflating two cases.

    https://www.jpost.com/israel-news/netanyahu-trial-bezeq-avi-berger-issues-could-determine-bibis-fate-analysis-683744

  9. @Adam, let me put this simply I think you have the facts wrong and what went on allegedly! The generalizations you write are some of the smoke screen used to try and cloud the issue from Bibi’s actions according to the charges. Case 4000 is actually the case I meant to be referring to.

    The current witness in the trial will go along way in proving or not if Bibi is guilty. If he holds up under cross-examination by defense counsel, Bibi stands a very good chance of being convicted.

    What is being charged that the regulations favors Bibi obtained for Bezeq actually cost Israelis is less performance of internet at higher costs.

    As a result, the deployment of high-speed fiber-optic cables that would have given millions of Israelis infrastructure for cheaper and faster internet, and ensured Israel’s capacity to maintain a global competitive edge, was significantly slowed.

    It remains to see if the Judges believe the witnesses. If they do Bibi will be found guilty if they have serious doubts about the veracity of the testimony he will not.

  10. @Bear. Its a fact that politicians, not only in Israel but in all democratic countries, routinely trade support for measures desired by private interests for political support from those interests. That has always been the case, whether it is morally justified or not. Usually, this political support in exhange for government assistance to private interests has taken has the form of campaign contributions. Perhaps a form of bribery or extortion, yes, but the U.S. Supreme Court has repeatedly upheld its legality. It is also legal in Britain and nearly all democratic countries.

    What was unique about the Netanyahu case is that he has been accoused of bribery not for demanding money, but for demanding favorable publicity from a newspaper owner who was seeking regulatory changes that were helpful to his non-newspaper interests. This strikes me as less, not more corrupt than demanding campaign contributions. And there was only one legal precedent for it in Israel and none, as far as I have been able to find out, elsewhere.

    The one legal precedent for making demands for political support in return for decisions favorable to a media publisher was in a case of municipal corruption in a small Israeli city. That case was initiated while the investigation of Netanyahu was already in full swing, leading me to conclude that it was a test case to see if a similar indictment against Netanyahu could prevail in court.As it turns out, the court aquitted the defendant, the mayor of this small town (I can’t remember which town it was) on this charge, on grounds that there was no legal precedent for it.

    There are many other reasons for considering this charge an unjust frame-up. Although the newspaper owner did make some efforts to persuade the publisher-editor of this newspaper, which had always been extremely hostile to Netanyahu and the Likud, to publish some articles that placed Netanyahu in a favorable light, after Netanyahu demanded that he do this in return for signing on to the regulatory reforms that the newspaper owner wanted, the editor of the newspaper agreed to publish only a few such articles. Most of the articles published by this newspaper continued to be, and still are, hostile to Netanyahu. Thus the political benefits that Netanyahu derived from his attempted “extortion” of favorable publicity from the newspaper’s owner were negligible.

    As to the regulatory changes that the newspaper owner, whose main business was not in publishing but in in telecommunications, , Netanyahu only approved them with the “poison pill” of allowing other companies, for the first time, to compete with this telecommunications giant. As a result, the owner of this communications monopoly lost several billion dollars from the regulatory changes signed onto by Netanyahu, rather than gaining billions as he had hoped.

    Another flaw in the indictment was that the regulatory changes approved by Netanyahu were enormously beneficial to the Israeli public. For the first time, Israeli consumers were allowed to “bundle” internet, television and telephone service into one package, as American consumers had been able to do for years. This saved Israeli users of these telecommunications services several billion dollars a year.

    Since the owner of the telecommunication giant, named Bezeq, who also owned the newspaper in question as a minor side business, failed to “deliver” much favorable publicity for Netanyahu, not nearly enough to impact future elections, and since Netanyahu “rewarded” the media mogul for his efforts by screwing him over the barrel, while benefiting Israeli consumers at his expense, the charge of bribery in this case seems absurd to me.

  11. No, even in case 3000, the change of the law was brought to the consideration of the government AFTER MANY MEDIA PROFESSIONALS advised changing the law.

  12. Martin, in Case 3000 if the charges are proven it means in relatively simple terms that Bibi had the law changed to benefit a company at the expense of the Israeli citizen in exchange for what amounts to free political advertisement for Bibi in Walla.
    This is a quid quo pro in more legal terms.

    The smoke defense is that it is legal hocus pocus. Changing laws to benefit oneself is illegal sorry.