Netanyahu plea deal drama raises questions about Israel’s justice system and his future

Medlir Mema, PhD
Fellow, Middle East Policy Council

1.26.22

Former Israeli prime minister Benyamin Netanyahu continues to steal the headlines as talks of a plea deal with Israel’s state attorney head towards an uncertain finish. It seemed certain for a while that Mr. Netanyahu was going to ultimately plead guilty to lesser charges resulting from bribery and embezzlement allegations. However, over the last couple of days the former prime minister has balked at the inclusion of a ‘moral turpitude’ clause which would see him barred from running for office for seven years. The turnaround has caused his likely challengers to retreat, while even some of his supporters have urged Mr. Netanyahu to accept the plea deal and thereby protect the image of the country’s justice system, which many believe risks being exposed.

That is the view, for example, of Ben-Dror Yemini, who in an op-ed for Yedioth Ahronoth, suggests the long-running investigation has been damaging to the rule of law and may prove detrimental to the interests of the country: “We are much better off finishing this saga now so we can mend the damage we have created. A few more years of this trial can throw the Israeli public into the abyss. True, the sudden involvement of Aharon Barak – a retired Supreme Court chief justice and self-proclaimed ally of Netanyahu – is bewildering. We know that Barak did not stick his nose into this affair out of his own volition, nor did he speak with Mandelblit of his own accord. Obviously, Netanyahu chose Barak, who is a high-profile enough figure in the judicial system, to pave the way for the plea deal. Barak himself also knows this continuous affair does nothing but crush the public’s trust in the rule of law.”

A similar argument is presented by Haaretz’ Noa Landau, who also, citing former Supreme Court President Aharon Barak’s recent intervention, argues that it is clear that Israeli elites are not interested in exposing any more than is necessary Israel’s increasingly frail justice system: “In nearly every discussion these days about a possible plea bargain with the defendant Benjamin Netanyahu, supporters of a compromise repeat the same main argument: The deal with the former prime minister is necessary in order to undermine his attack on the justice system. This argument was made most prominently by former Supreme Court President Aharon Barak, who explained that he supported the deal because it would ‘take the sting out of the demolition of the court system’.”

Not all agree with that assessment, however. Nadav Eyal notes in a recent Yedioth Ahronoth op-ed, that the real threat to Israel’s judicial system comes from allowing Mr. Netanyahu to plea to lesser charges, rather than having him face the full force of the law: “Given the circumstances, a plea deal is the obvious choice. But what is most obvious and impartial is not always right. A plea deal of this kind with Netanyahu will only further erode the already-eroded foundation on which public’s trust rests…. a plea deal will leave all questions open. The publicity of a trial, the need to reach some sort of truth, the sense of certainty an acquitted individual receives, or the deterrence created with the conviction of a public figure – all of these will evaporate. The deal will also be seen, quite simply, as a barter between Israeli elites who solve their internal conflicts in a clandestine manner behind closed doors. It will also set a dangerous precedent by letting any future offender in the public arena know that they can get a better deal by continuously spewing venom at the public.”

Writing for Israel Hayom, Haim Shine is also of the view that not agreeing to an early plea bargain was the preferred outcome. Shine’s reasons for doing so, however, are different from those of Eyal, believing instead that Mr. Netanyahu may be the only politician who may be able to push back against an increasingly politicized court: “Even if he were to decide to sign a plea deal, Netanayahu was right not to agree to do so earlier on. His willingness to come this far has served to expose much of the State Attorney’s Office’s shame, negligence, and bias. We must accept every decision he makes from this point on. Yet out of genuine concern for national values and the future of the state and citizens’ willingness to respect the law, the trial must go on. The many donors who contributed to Netanyahu’s defense campaign, which managed to raise impressive funds in hours, did so in the belief that the law enforcement system needs to be fixed. This is not about charity for Netanyahu. It’s about the belief that only he can now lead the struggle to reveal the distortion and fix the justice system.”

The irony, of course, is that, as Jerusalem Post’s Herb Keinon points out, the former prime minister is a ‘wily operator’ and it is not yet clear what his decision will be in the end. Recent indications are that he may choose to take the case to a trial, hoping to destabilize the government in the meantime and return as prime minister: “These, too, are negotiations. Netanyhau’s side tried to remove the moral turpitude clause, and the attorney-general insisted that it remain. There were reports that both Netanyahu’s family on one side, and prosecution lawyers who have been working the case for years on the other, were against the deal. However, like all coalition negotiations, these messages may have only been ways to get leverage in these negotiations. For if there is one thing Netanyahu has learned in his long political career, it is how to negotiate…. Netanyahu is Netanyahu, a man renowned for his political wiles as well as for political shticks and tricks. Until a deal is either signed or formally taken off the table, there will be those searching for something up his sleeve that they believe just must be there.”

Mati Tuchfeld suggests that the instability within the Likud can only help PM Naftali Bennett’s government, while potential Likud challengers are likely to retreat in the presence of Mr. Netanyahu: “The politician with the most to gain is Naftali Bennett. The premier knew a plea deal would turn everything upside down and destroy the coalition. The biggest losers are the candidates for Likud party leadership, who believed they would have their turn any minute. Some of them were so confident this was the case that they rushed to give their motives away. Their premature moves ended in failure in further proof that in politics, sometimes, timing is everything.”

Writing for Jerusalem Post, Susan Rolef puts forward a similar argument, adding further that the only thing keeping the current governing coalition together is their commitment to seeing Mr. Netanyahu out of power: “there is no doubt that Netanyahu’s departure will increase the chances of its premature disintegration. Despite the fact that most of the right-wingers in the current government will probably have difficulty reintegrating into a purely right-wing, religious government, according to most recent opinion polls, though the Likud under all of Netanyahu’s potential heirs will receive less votes than him, their chances of forming a coalition are better than his, primarily because while there is a strong ‘just not Bibi’ sentiment, there is much less of a ‘just not the Likud’ sentiment.”

Even supporters of the Likud leader, like Arutz Sheva’s Yshai Amichai, cite Netanyahu’s inability to form stable governments over the last few years as evidence of the need to move beyond the Netanyahu era: “Netanyahu has failed to form an effective coalition in the four recent elections, between April 2019 and March 2021. In June 2021, Naftali Bennett replaced him as prime minister. After failing so many times in the past, there seems little chance of Netanyahu succeeding now. Should Netanyahu stay in politics, he will likely remain as the leader of the opposition, or worse, be voted out of the Likud leadership. Stepping down and enjoying a peaceful retirement might be preferable to him. Either way, the day will come when Israelis will no longer look to Netanyahu for leadership. He has led the country for 15 years. While still energetic and relatively young (at 72), he does not seem to offer anything new or better than the two years of political deadlock still fresh in our minds.”

Finally, there are those who see the possibility of a new beginning for Mr. Netanyahu, untethered by party politics. Martin Oliner, for example, writes in his Jerusalem Post opinion piece that “Freed of his responsibilities as Likud leader and Knesset member, Netanyahu can take that role. Netanyahu could go to the Iran-deal talks in Vienna and speak to relevant parties, without the burdens and complications of officially representing Israel. He can go to America whenever he wants, without getting permission to miss votes and the Knesset ethics committee asking who funded his trip. When there are elections between a pro-Israel candidate and an anti-Israel candidate anywhere around the world, he could provide a superstar endorsement that would make a difference…. Netanyahu can provide his prominent voice, talents, experience and intelligence.”