The trial of the century begins as Netanyahu heads to court

MAY 21, 2020 20:31

It will be a scene never witnessed before. On Sunday, a sitting prime minister of Israel will appear in court to stand trial on charges of bribery, fraud and breach of trust.

But instead of showing up in Jerusalem District Court as a caretaker prime minister, a former prime minister or just a regular Likud MK, Benjamin Netanyahu has managed to pull off the nearly impossible. He’ll be taking the stand in a position of power, as the head of the government, a 72-person coalition that includes his Likud Party’s main rival for the last two years, Blue and White.

Everything flows from the initial trial schedule, which will be set at the opening hearing of the trial on Sunday at the Jerusalem District Court.

And timing has only become more important since March, when Netanyahu’s trial was originally supposed to begin, but then got postponed due to the breakout of COVID-19, the novel coronavirus. In the nine weeks since then, Netanyahu not only succeeded in holding on to power but also in getting Blue and White leader Benny Gantz to walk back his campaign promise and to sit under him inside the government.

Sunday’s hearing will mostly be about resolving technical disputes over whether Netanyahu’s defense team has already received either all or nearly all of the evidence due to them. Yet everyone’s eyes should be on the timing and schedule that the judges set for the case.

The judges presiding over the case are Rivka Friedman-Feldman, Moshe Bar-Am and Oded Shaham. It should be noted that Friedman-Feldman rejected Netanyahu’s request back on March 10 to postpone the scheduled March 17 date for the opening of his trial. And it was she, Bar-Am and Shaham who, on Wednesday, rejected Netanyahu’s request for an exemption from attending the opening day of the trial.

The trial could last anywhere from one to three years, depending on whether the judges, who have tremendous discretion over the issue, want to finish it fast or push off the momentous decision as long as they can.

How fast they move the trial impacts the verdict date, a potential sentencing date and a potential date of going to prison in the case of a conviction with jail time.

ACCORDING TO THE national-unity deal, Netanyahu is due to hand over the premiership to Gantz in November 2021, with Netanyahu becoming alternate prime minister in charge of foreign relations at that time.

But what if the court has already reached a verdict?

If Netanyahu is convicted, might he be disqualified from continuing to serve in government, whether as prime minister or as alternate prime minister?

The High Court of Justice just recently made it clear with an 11-0 ruling that it will not force him out of office on the basis of an indictment alone.

Technically, the Basic Law says that a prime minister can be forced out only once he is convicted and all of his appeals are exhausted, a process that can drag on for several months or more past the conviction.

But might the High Court intervene at the point of conviction, even if he has an appeal pending, or might it say that an alternate prime minister cannot stay in office once convicted, only a full prime minister?

Only time will tell.

THE TRIAL on the indictment of Netanyahu for bribery in Case 4000, the Bezeq-Walla Affair, for fraud and breach of public trust in Case 1000, the Illegal Gifts Affair, and for fraud and breach of public trust in Case 2000, the Yediot Aharonot-Israel Hayom Affair, will start off slowly.

A key indication of when the judges want to wrap this up and when the verdict will come down is whether witnesses are called in three months, six months or even nine months.

The trial will be complex, so if the court wants to draw things out, it has a basis to do so.

In Case 4000, Netanyahu is accused of involvement in a media bribery scheme in which Walla owner Shaul Elovitch allegedly gave him positive coverage in exchange for Netanyahu making government policies favoring Elovitch’s Bezeq company to the tune of around NIS 1.8 billion.

This case could take 50%-90% of the court’s hearings, as it involves analyzing years of Walla news articles, how they were maneuvered on the website, voluminous text messages between Netanyahu’s alleged middlemen and Walla staff and a significant number of Communications Ministry letters, emails and policy documents.

This is also the hardest case for Netanyahu, since he faces accusations by two close former aides turned state witnesses, Shlomo Filber and Nir Hefetz.

Elovitch and his wife are also defendants in this case. That is an important fact because if the court believes they were involved in bribery and Elovitch’s testimony to police was damaging, it gets harder to say that Netanyahu was not involved.

According to the indictment, Hefetz will accuse Netanyahu of micromanaging Walla news coverage, but he has already shown a tendency for outbursts in spin-off legal proceedings and is the weaker of the two witnesses.

While Netanyahu’s defense lawyers may exploit many holes in Hefetz’s testimony, former state attorney Shai Nitzan has told The Jerusalem Post that the prosecution has vast external documentary evidence, including text messages, and overlapping witnesses to confirm Hefetz’s allegations.

Once the prosecution’s half of the case begins, Hefetz will likely testify for several days of hearings, if not several weeks, followed by possibly even longer cross-examination by Netanyahu and the Elovitch family.

Filber will allege and describe Netanyahu’s hatching the scheme to favor Elovitch in government communications policy, and is far more formidable than Hefetz under pressure.

His testimony could be shorter than Hefetz and may not last more than several days, if he is used in a targeted way. Or it could also be drawn out for months, if the prosecution uses him to give both firsthand accusations and to narrate the many sides of the bribery scheme.

Regarding Walla, it is unknown whether the prosecution will just call management-level Walla personnel as witnesses for a few days, or spend weeks calling the around one-dozen Walla reporters who have gone public blasting alleged undue interference regarding reporting on Netanyahu.

Netanyahu’s defense will emphasize that Walla did many negative stories about him, which shows he did not dominate it. It will say that any communications policies that favored Elovitch were approved by neutral bureaucrats such as Yifat Ben-Chai Segev and Dana Neufeld.

It may spend weeks analyzing these articles with the court, if the judges let it.

Or, if the judges want to finish the case sooner, the court could demand that these arguments be confined to written legal briefs so as not waste more in-person hearings.

Parts of Netanyahu’s defenses are true and solid. The question will be how his lawyers will deal with Filber’s testimony that, on Netanyahu’s behalf, he twisted the arms of the apolitical bureaucrats behind the scenes.

In Case 1000, Netanyahu is accused of receiving hundreds of thousands of shekels in gifts from rich tycoons, mostly from Arnon Milchan, in exchange for help with business and personal-legal initiatives.

This part of the case will likely be the shortest, as it involves a select small number of incidents and persons involved. Still, “short” could be a few weeks or could be dragged out for months.

The charge itself is for acting in situations in which the prime minister had a conflict of interest, since no actual quid pro quo can be proven.

The lack of a quid pro quo is why this case is on less steady ground than Case 4000.

But even if there are fewer witnesses and documents, there are still multiple prominent witnesses, such as former Mossad chief Tamir Pardo, former Shin Bet director Yuval Diskin, former national security adviser Uzi Arad, Ambassador to the US Ron Dermer and, of course, Yesh Atid Party leader Yair Lapid. They will describe a pattern of behavior over many years that probably leaves the chances of a conviction at 50/50.

Other prominent witnesses will include former foreign minister Tzipi Livni, former Labor MK Eitan Cabel, incoming US and UN ambassador Gilad Erdan, newly elected Knesset Speaker Yariv Levin, as well as ministers Ze’ev Elkin and Tzachi Hanegbi.

Additional close Netanyahu advisers listed as witnesses include Ari Harow (who turned state’s witness), cousin and lawyer David Shimron and David Sharan (both of whom will likely also be indicted in Case 3000, the Submarines Affair), Perach Lerner and Ran Baratz.

Most of them will have short parts in the trial, but Erdan might be required to fly back from the US to testify for multiple days and might need to endure multiple days of cross-examination, since he was communications minister before Netanyahu took over. When Erdan left the Communications Ministry, he had a range of anti-Bezeq reforms ready to move forward, but they were subsequently slowed or quashed by Filber, allegedly under Netanyahu’s orders.

Erdan reportedly did not hold back from telling police about why the reforms he pushed (and which Netanyahu tried to stop or slow) were necessary. How loyal will Erdan be to Netanyahu, if he is testifying closer to when Netanyahu will need to hand the premiership over to Gantz, and if the perception is that he is losing the case?

Former Bayit Yehudi MK Yinon Magal’s testimony could also be volatile.

No one knows whether Magal will try to help Netanyahu as an ideological supporter, or whether his role in opening up the allegations of Netanyahu trying to bribe his way into positive media coverage at Walla (where Magal worked) will harm Netanyahu’s case.

In Case 2000, Netanyahu is charged with working with Yediot and Israel Hayom to reduce the latter’s competition with Yediot in exchange for positive coverage for Netanyahu.

Though the deal fell through, the crimes of attempted bribery and breach of trust are on the books for such a case.

Mandelblit never liked Case 2000, but charged Netanyahu with breach of trust once he went after Yediot owner Arnon “Noni” Mozes for bribery.

Mandelblit may have fatally wounded Case 2000 when he dropped the bribery charge against Netanyahu, going for a mere breach of trust. That decision forced Mandelblit to swallow much of Netanyahu’s narrative that he never intended to go through with the bribery scheme with Mozes, and that all their negotiations were a complex chess match.

But Netanyahu will need to defend himself against Sheldon and Miriam Adelson, the owners of the pro-Netanyahu Israel Hayom newspaper.

Sheldon Adelson has testified that he was upset with Netanyahu’s push to limit Israel Hayom’s competitiveness as part of the Mozes deal.

Since Adelson is a Netanyahu supporter, his testimony was groundbreaking in Mandelblit’s decision to indict Netanyahu in Case 2000.

Will Adelson come in person to testify, try to opt out due to poor health, or be questioned by videoconference, such as occurred with former prime minister Ehud Olmert’s brother in the Holyland trial? Would the prosecution try to submit his police testimony, if he is too sick to testify, and will Netanyahu’s lawyers risk cross-examining him?

These questions will add additional drama and could also drag out the case for additional weeks or shorten it.

WHAT IF Netanyahu is convicted?

The verdict will likely be sometime between late 2021 and mid-2023.

Sentencing would likely take place between early 2022 and late 2024. Olmert was convicted in March 2014 and sentenced in May 2015.

If Netanyahu is sent to jail, this would likely occur between mid-2022 and mid-2025. Olmert was sentenced in May 2015, but used an appeal to the Supreme Court to delay entering prison until February 2016. Netanyahu could be expected to try the same tactics, to get an acquittal, to reduce his sentence and to delay.

But well before that day comes will be the months of testimony, court appearances, media coverage and hoopla that will either rivet, appall or bore the nation.

Start your engines.