Sunday, May 24, 2020

The Trial Begins: Netanyahu's Criminal Trial Officially Starts

It was a wild and crazy opening to a trial that will surely be one of the memorable events in the history of the State of Israel.  Prime Minister Netanyahu arrived today at the Jerusalem District Court for the official opening of his trial.  This was really only a date to read out the charges and set dates for the continuation of the trial.  But it was a polarizing and fascinating spectacle.

The Prime Minister arrived at the courtroom as part of a televised convoy of vehicles, all part of his security detail.  He then took to the steps of the courtroom and stood in front of a group of supporters including fellow cabinet ministers, members of his government and the other accused.  He gave a lengthy speech attacking the police, the prosecutor's office, the left and just about everyone else.  Given that his government has been in power for such a lengthy period of time, at least some of this vitriol had to have been directed at his own government.  After all, some of the people responsible for investigating him were his own appointees and designates.

Netanyahu argued that the three criminal cases that he is facing have been "sewn together" and add up to nothing.  He  spoke about pressure that the State used to obtain cooperation of State witnesses.  And he said "the people of Israel will judge him."  He went on about his electoral successes and the number of people who voted for him.  The TV stations  here broadcast the full speech - which went on for quite a while.  It was a call to the public to stand by him and provide unconditional support, no matter what might occur.

At the same time, there were busloads of Netanyahu supporters, from across the country, who had arrived to show their support for Netanyahu, "no matter what happens."  This may have been organized by Netanyahu's legal team but so far, there is no evidence of that.  The interviews with several of these witnesses were riveting and frightening.  "The "Kadosh Baruch Hu will protect him and ensure that justice is done," said several of those who were interviewed, using various other terms for the divine intervention that they are expecting.

Others attacked the court system, the prosecutor's office, the judges and the Israeli left.  Several of them played religious songs and danced in front of the courtroom as if they were at a wedding.  One 12 year-old girl was interviewed, standing next to her father, and said she had decided to come to the demonstration instead of her bat-mitzvah party.  She wanted to stand for "truth and justice," she said.  "They are harassing the Prime Minister," she continued, "they should just leave him alone...think about all of the great things he has done  for the country."  "I would rather be here standing for truth and justice than having a bat mitzvah party."  My only reaction to that was "wow."

There were also several protesters demonstrating against Bibi, but they didn't seem to get very much press coverage.

Ultimately, Netanyahu delayed taking a seat inside the courtroom until all of the press had left so that he could not be photographed sitting in the accused's dock.  And so it began.  As might be expected, Netanyahu's lawyers argued that he required an extensive time period to prepare and review the charges, well into 2021.  They had a new lawyer on the team and would need extra time to get up to speed. The prosecution argued that he has been aware of the charges and was provided with extensive evidence and materials quite some time ago.  They pushed for an early date for the continuation of the trial.  The three judges reserved and will announce a schedule later today or some time tomorrow.  

Earlier this week, several Israeli TV programs and news reporters conducted in-depth reviews of the three cases against Netanyahu.  They were able to do this based on the public release of transcripts of witness examinations, text messages, emails and evidence provided by Netanyahu himself.

The most serious set of charges involves the Bezek telephone company and its press subsidiary "Walla" which operates a Hebrew language on-line news service.  The prosecution alleges that Netanyahu provided extensive regulatory favours to Bezek which allowed them to earn millions of dollars over a period of two years.  In exchange, the prosecution alleges that the CEO of Bezek agreed to provide Netanyahu with favourable news coverage on Walla.  The prosecution has put forward a huge number of emails, text messages and other communications showing that Netanyahu and his wife, Sara, were sent articles in advance and given the opportunity to edit them and change them to make them more favourable to Bibi.  In some cases, Bibi and Sara were provided with advance copies of video interviews and allowed to splice them, delete sections and change the context of the interviews.  

Netanyahu's defence is that politicians always try to influence the media..  He argues that this is part of the game and can't be criminal.  His lawyers call this case an attack on the freedom of the press.  They claim that merely obtaining favourable press coverage cannot be the subject of a bribery case.  In fact, Netanyahu's legal team recruited world famous law professor Allan Dershowitz to come to Israel and make that argument at Netanyahu's preliminary argument last year.  Essentially, the argument was that even if Netanyahu provided something of value to Bezek (worth millions of dollars), he didn't get anything of value in exchange since "favourable press coverage" has no value.  Not surprisingly, the Israeli court dismissed this preliminary argument out of hand.  I imagine that Dershowitz's arguments in support of Trump would have also met the same fate if they were made before any panel of objective judges.  

Netanyahu did not speak about the other two criminal counts.  According to one count, he received hundreds of thousands of dollars worth of champagne and cigars from Israeli/American business people over a period of several years.  The gifts are well documented and not disputed.  In exchange, it is alleged that he provided them various favours, including, for example, assisting one to try and get President Obama involved in a business visa matter.  Here, Netanyahu's primary defence seems to be that "there is nothing wrong with getting some gifts from your friends..."  His lawyers have also said that if a good friend asks for a favour, of course you are going to help out.  They simply claim that there is no linkage between the two.

The third set of criminal charges also involve allegations of breach of public trust involving another news organization and an attempted deal to arrange favourable publicity.

Netanyahu has the right, as do all accused, to be considered innocent until and unless he is found guilty.  However, there is a great deal of damning evidence here and the legal defences that he is putting forward do not seem likely to assist him in getting out of this completely.

For that reason, Netanyahu has invested significant effort in trying to get legislation passed that would retroactively eliminate the charges and provide him with immunity.  However, under the current government coalition deal, has not been able to extract that concession.  If this current coalition falls apart and there is another election, before the trial is concluded, Netanyahu might still be able to use the political process to get himself out of legal trouble.  There is probably a reasonable bet on Netanyahu's part that this would be his best way of dealing with these issues.  After all, he came within 3 seats of being able to get those concessions after the most recent election and he has now eviscerated Gantz and his Blue and White Party.  It is quite possible that if a fourth election is called, Netanyahu may be able to cobble together a 61 seat majority "immunity coalition."

If that doesn't work, he may yet negotiate some sort of plea bargain deal, down the road.  His wife Sara negotiated a plea bargain deal last year which saw her agreeing to plead guilty and repay some of the money that she had fraudulently obtained from the state.  

If the case somehow makes its way all the way through a trial and through to a conclusion, it will be intense, highly contested, dramatic and unpredictable.  And throughout, Netanyahu is certain to continue using his out of court time to call on the Israeli public to accept only one conclusion to his legal problems, whatever the evidence might show and whatever the judges might otherwise decide.

Stay tuned, although  this trial is not likely to continue before the end of all of the Jewish holy days in late October, 2020 and it may not even start until months later.







Monday, May 4, 2020

Some Improvements in Israel and Some Ongoing Arguments

Israeli Supreme Court
Well here we are in May, 2020 and our Prime Minister is claiming victory over Covid-19.  Okay, not exactly, but at a news conference earlier this evening, he pointed out, repeatedly, how much better Israel has fared than many other countries with similar sized populations.  All because, he argued, Israel took very aggressive steps much earlier than these other countries.  He mentioned Italy, Spain, the United States and others.

Using various charts and  graphs, Netanyahu showed that Israel has seen a tremendous reduction in its infection rate, a reduction in the number of daily fatalities and a reduction in the number of seriously and critically ill patients.

It is true that the steps taken, largely at the behest of professionals working in the Ministry of Health, have helped Israel to fare reasonably well in comparison.  But it is unclear that this means that Israel can now open everything up and pretend that the virus has gone.  If there is a resurgence, everything will have to be shut down again quite quickly.  According to Netanyahu, it will take about two weeks to make that assessment.

In the meantime, the Israeli government has loosened many restrictions.  Malls and outdoor markets will be open on Thursday May 7, 2020.  Visits to see family members, including grandparents are now permitted - though "no hugging" is recommended.  Gatherings of up to 20 people are now permitted.  (Up until now, this was only permitted if it was an outdoor prayer service).  Weddings on Lag B'Omer may be permitted with up to 50 people - though it wasn't clear if the limit will be 20 or 50.  All students are expected to return to schools by the end of May.

People will still be expected to wear masks when they are out  and gloves are recommended though not mandatory.  We took a walk today around Ra'anana.  While there were some people without masks, we concluded that most people were complying.  In some shops, proprietors were following all of the restrictions diligently.  In others, things were a bit looser.  Okay, much looser....But the infection rate in Ra'anana has been reasonably low so it is fair to assume that many people here are following the rules.

Some other cities in Israel have been much harder hit, most notably, Jerusalem, B'nei Brak and some other areas. However, it does appear that things are improving somewhat in most of the country.  It remains to be seen whether this will be a blip or whether it will mark some genuine progress.  The Israeli government has indicated that if all goes well, it intends to permit  gatherings of 50 or more people  - for weddings, funerals etc., by June 17th.  Not sure yet what this will mean for restaurants - though it may be good news for those with outdoor patios.

Today also marked the second day of arguments before the Israeli Supreme Court over whether or not to permit the coalition deal with the Blue and White party to proceed.  Various groups  have brought petitions to the Court arguing against the deal.  I am not going to review all of the legal arguments but I will highlight a few of them.

Under Israeli law, a "Prime Minister" can serve even while under indictment for serious offences.  However, other MKs cannot continue in their posts and ordinary "Ministers" are required to step down if charged with certain serious offenses.  The new coalition agreement contemplates that Netanyahu would serve as the Prime Minister for the first 18 months and would then step down to a lesser position.  However, under current Israeli law, that would require him to resign altogether until the serious charges that he faces were resolved.  The solution that Netanyahu concocted is that he wouldn't still be called the "Prime Minister" but Gantz would be the "Alternate Prime Minister" who would effectively run everything after the rotation date.  But because Netanyahu would still be called the "Prime Minister" he would not be forced to resign.  Israel would effectively have two Prime Ministers which seems to go against Israel's quasi-constitutional Basic Law.  (Israel does not have an actual constitution). 

The Court chewed on this one for a while today.  Ultimately, some members of the Court suggested that they may delay deciding until it actually becomes an issue 18 months from now.  But Netanyahu's lawyers urged the Court to make a decision now.

The coalition deal would also require a freeze on all new appointments in government including a number of key positions which have been dormant for some time.  Netanyahu's lawyers argued that it was all because of Covid-19.  Some of the Supreme Court judges asked how the two were in any way related...For example, the President of the Court asked why Covid-19  would prevent the government from appointing a new Chief of Police.

I have to confess that, as a lawyer, I enjoyed watching a chunk of the arguments.  It was fascinating to compare legal discourse in Canada to that in Israel.  It was a very heated argument at times - and certainly the type of language that was used was much more colourful (and at times informal) than one might hear at the Canadian Supreme Court, most of the time.  My Hebrew is good enough to catch most of it though I probably missed some nuances, some references to previously decided cases and some other phrases common only in Hebrew legal usage.

From what I could gather, there is a strong reluctance on the part of the judges to interfere in the election process.  They do not want to be seen as overriding a democratically elected government formed though a back and forth negotiation process.  At the same time, they are wary of upholding laws that would violate the Israeli Basic Law and chip away at Israel's democracy and commitment to the rule of law.  Towards the end of the hearing, the justices signaled that they needed to hear further arguments about two key issues and gave the Likud lawyers 24 hours to amend the proposed law or put forward better arguments.  It would be really difficult, however, to predict what decision will follow that additional argument.

Changing the topic, the weather here is heating up and the big holiday of Lag B'Omer - national bonfire day (effectively) is approaching.  Beaches are not yet open but just about everything else will be soon - and reopen beaches cannot be too far off.   Many people are now out and about and there is a feeling of some optimism across the country.

For  many, however, a huge part of the Israeli economy is tourism.  So many businesses across the country rely on the tourism industry.  Hotels, restaurants, merchants, tour guides and so many others.  It is really unclear when Israel will be able to reopen its borders to tourists, when the airports will reopen and when things will really turn back to some semblance of normal.

But I suppose that is the same just about everywhere else.  We will all just have to hope that things improve dramatically everywhere, the sooner the better.  Wishing everyone the best of health.