We have known for some time that the police would likely recommend indicting Prime Minister Benjamin Netanyahu for something in his public corruption cases.
But Tuesday’s night’s recommendations were truly Netanyahu’s worst case scenario: Bribery, the most severe financial crime, in both Cases 1000 and 2000.
The prime minister has been struck by a perfect storm.
At certain points throughout the investigation, the recommendation was rumored to be “only” for breach of public trust – a crime many top legal scholars still cannot truly define – in Case 1000, and for nothing in Case 2000.
Netanyahu would not have loved this, but he would have been in much better shape than he is now.
Had the police recommended indicting Netanyahu for breach of public trust for illegally receiving expensive gifts in Case 1000, then Attorney-General Avichai Mandelblit could decide to close the case even if there was evidence.
While some outlets have been reporting it as news that Mandelblit would not want to indict Netanyahu and potentially topple a government without a case that was viewed as both serious and as even more airtight than usual, The Jerusalem Post had already reported this in January 2017.
Are we going to bring down a prime minister for some improperly received cigars and champagne, Mandelblit might ask? Likewise, the Post has known since January 2017 that Mandelblit viewed Case 2000 as weaker.
Mandelblit could ask: What crime is there when the alleged media bribery offer never went through? Bribery means something was given and received.
Here, there were talks, but nothing was given or received. And how could even intent for attempted bribery be proven when Netanyahu said his offers to hurt Israel Hayom and help Yediot Aharonot in exchange for better coverage were an elaborate game – and his push for elections in 2015 to defend Israel Hayom from hobbling by the Knesset supports that theory.
So even a recommendation for bribery in Case 1000 and closing Case 2000 would have left the prime minister defending only one front, and only a story about cigars and champagne.
Now, Netanyahu is looking at charges of bribery for “the gifts affair” and for an affair that evokes a prime minister and a newspaper publisher running the country undemocratically in dark, smoky rooms behind the scenes. He may also have to cope with devastating recordings of those meetings being released in a public trial.
The police signaled this move with Commissioner Roni Alsheich’s interview last week in which he inferred that the prime minister or his allies were trying to follow and intimidate the police – meaning he was framing Netanyahu as corrupt to the bone.
This will make it much harder for Mandelblit to close all charges against Netanyahu even if that might be his inclination.
With all of these allegations, many prosecutors who want to charge Netanyahu will talk louder.
Mandelblit, at the end of the day, is now much more beholden to the community of lawyers, prosecutors and judges than he is to the politicians who gave him his job.
If he closed one of the two cases or reduced the charges from bribery but still ordered an indictment, he would be viewed by many as taking a middle and fair ground – much as his predecessor Yehuda Weinstein did with then-foreign minister Avigdor Liberman, in closing a big case and filing an indictment only in a smaller case.
WHAT WILL Netanyahu do? Unlike former prime minister Ehud Olmert, he has far more political support and there is no special pretrial witness process against Netanyahu as there was for New York businessman Morris Talansky against Olmert.
The prime minister will scream over and over that Mandelblit will not indict him and that he will continue no matter what. After all, the law is undecided about whether a prime minister under indictment must resign, isn’t it? But the undecided part of all of this was mostly discussed long ago, when the expectation was an indictment only in Case 1000 and only for breach of trust.
Former Supreme Court presidents Aharon Barak and Meir Shamgar have made it clear that a prime minister under indictment must resign.
Neither Netanyahu nor his government has done anything to sweeten relations with the current Supreme Court and its president Esther Hayut. In fact, the government is currently fighting tooth and nail with Hayut over new justices to be appointed next week.
After the severe police recommendations, the chances are much lower of the court letting Netanyahu stay in office if he is indicted and a petition is filed to kick him out. They can cite past case law with Arye Deri (in his first stretch as a minister), Shlomo Benizri and several mayors to support forcing a resignation, even one not explicit in a statute. None of those forced resignations were mandated by statute.
Mandelblit was almost prevented from taking up his job because he was viewed as too close to Netanyahu, having served as his cabinet secretary.
Maybe Netanyahu could have tried to stare down a different attorney-general, but not this one.
There is still a chance that Mandelblit could pick apart all of the police recommendations. His predecessor cleared Mandelblit himself of all police recommended charges against him in 2015 in the Harpaz Affair and cleared former IDF chief Gabi Ashkenazi as well.
But after these harsh recommendations, that is now a very unlikely scenario.
Liberman also proclaimed he would never be indicted and would never resign if he was indicted.
Until he was and he did.
The prime minister’s public address last night showed he is still fighting for his job. But whether he realizes it or not, he has been struck by a lethal legal disaster, and the chances he can recover are remote.