No matter the outcome of Netanyahu's trial, Israel loses – comment

If Netanyahu is convicted, half the country will believe that he was railroaded, and the other half will lose faith in the political system. If acquitted, faith in the justice system will be lost.

By HERB KEINON
PRIME MINISTER Benjamin Netanyahu. (photo credit: REUTERS)
PRIME MINISTER Benjamin Netanyahu.
(photo credit: REUTERS)
Few things in politics are as despicable as efforts to use the power of the state to criminalize a political opponent, New York Times columnist Bret Stephens wrote on Saturday.
Liberals, said the conservative columnist, “used to have a healthy distrust of prosecutorial power, just as they had a healthy belief in the presumption of innocence.”
Stephens was not writing about the dramatic trial that opened in Jerusalem District Court on Sunday – the State of Israel vs Benjamin Netanyahu – but rather about the case of Michael Flynn, US President Donald Trump’s first national security adviser, who was forced out of office in 2017 just weeks after being appointed and who pleaded guilty in a plea bargain agreement to “willfully and knowingly” making a false statement to the FBI investigating Russian involvement in the 2016 elections.
“The railroading of Michael Flynn” was the headline to a long piece by Bloomberg columnist Eli Lake in Commentary Magazine last week that gave a blow-by-blow look at the malfeasance in the prosecution of Flynn. The Department of Justice earlier this month moved to drop the case because of severe irregularities in the way it was prosecuted, and this motion is currently under appeal.
Stephens, a harsh critic of Trump and no fan of Flynn, wrote that “sleazy behavior isn’t the same as criminal conduct.”
And that, in essence, is what the three judges in Jerusalem, who on Sunday began deciding the fate of a sitting prime minister, are set to decide. Is questionable behavior, sleazy behavior, designed to get positive press coverage tantamount to bribery and a crime that should not only drive Netanyahu from office, but into prison.
The standard lines one hears whenever a political figure of great prominence – Arye Deri, Moshe Katsav, Ehud Olmert – is in the defendant’s dock were mouthed as well on Sunday: This is a sad day, but one that Israelis should be proud of, because it shows that everyone is equal in the eyes of the law.
Really? Is that true?
Did the state prosecute its case against Netanyahu the same way it would have prosecuted its case against an average citizen? With the same energy? With the same resources? With the same leaks? Using the same methods?
And what about that presumption of innocence? Are not demands that Netanyahu leave office even though the law does not compel him to do so evidence that he is not being given the presumption of innocence? Has the coverage of the case in the media been an example of giving him this presumption of innocence? For many of Netanyahu’s opponents, the indictment itself is a presumption of guilt, and he should be treated accordingly.
Civil liberties matter, Stephens wrote of the Flynn case, “never more so than when a government seeks to prosecute the people it dislikes by hiding exculpatory evidence, using deceptive methods, relying on outdated laws or threatening them with financial or familial ruin.”
That is not to say that this has been the case in the way the prosecution built its case against Netanyahu. But even Netanyahu’s fierce opponents admit that some of the methods used in this case – from endless leaks to ways in which evidence was extracted from state’s witnesses – were questionable.
None of which means that Netanyahu is pure as the driven snow. Nor is there much credence to his argument that the officers of the state who were involved in the case – from the former chief of police to the attorney-general – were out to get him. It is worth remembering that Netanyahu appointed them.
Regardless of the eventual outcome of the trial, this will not end well for the State of Israel.
If Netanyahu is convicted, half the country – the same half who made clear with their votes three times within a year that they want to see him continue to lead the country – will believe that he was railroaded, Flynn style. And the other half will wring their hands and lose faith in the political system because the man who has been leading the country for so long has been declared a crook.
Yet if he is acquitted, half the country will lose faith in the prosecutorial process that put Netanyahu, and the country, through a ringer and came up empty-handed.
Much has been said and written in recent days about the danger of the public losing faith in the legal system, and that Netanyahu himself is guilty of creating this atmosphere because he is leading this attack on the judiciary – something that threatens the fabric of the rule of law.
Paradoxically, this lack of faith in the legal system will only grow if Netanyahu is acquitted.
If he is acquitted, much of the public will ask why in the world the prosecution put the country through this seemingly endless trauma. The judges know this as well, which in itself raises questions about their ability to render an impartial judgment. An acquittal here would be a thunderous vote of no confidence in the prosecution and the legal establishment. If the judges acquit, will they themselves not be cutting off the very branch upon which they sit? Because of the stakes, would they really ever be able to do that?
Regardless of the outcome of the trial, the country loses.
Either a prime minister is removed from office, whereby the country will lose faith in its political system, as it has been proven in court that its leader – a leader of unusual capabilities who has led the country to a completely different level – is crooked; or the prime minister is acquitted, which means that the prosecution overstepped massively, leading to all kinds of questions as to why.
Either the country loses faith in its political system or in its legal system.
There is no precedent in Israeli history to what is now playing out before our eyes. But we can learn something from recent American history.
Gerald Ford will not go down as one of America’s greatest presidents. He was never elected, having taken office after Richard Nixon resigned in 1974 following the Watergate scandal, and he failed miserably in his reelection bid in 1976 against a then little-known southern governor named Jimmy Carter.
But he did one act that, while heavily censured at the time, in retrospect most agree was a sagacious movie. He pardoned Nixon once the president resigned to prevent the kind of nation-dividing spectacle that a Nixon criminal trial would have turned into.
In explaining his reasoning to the American people, Ford said it would be many months and years before Nixon’s case would go through the courts.
“During this long period of delay and potential litigation, ugly passions would again be aroused. And our people would again be polarized in their opinions… The credibility of our free institutions of government would again be challenged at home and abroad,” he said.
This is not Watergate, and Netanyahu is not Nixon. But it is a pity that Netanyahu, the attorney-general, the Knesset, the state prosecutor, or even the president could not find some creative way to prevent us from ever reaching this day, since this trial will once again stir ugly and destructive passions, polarize the nation and call into question – both here and abroad – our free institutions of government.
And none of that, in the long term, does the State of Israel any good.