By Jonathan S. Tobin
(JNS) — There are some sound reasons for Israeli President Isaac Herzog to choose not to grant a pardon to Prime Minister Benjamin Netanyahu. But none of them have anything to do with justice, defending the Jewish state’s judicial system or even its democracy.
The idea didn’t originate with Netanyahu, who has consistently said the only proper way to end the long-running farce of his prosecution and trial should be with a full acquittal. Still, the prime minister wound up sending a request for a pardon largely as a result of foreign pressure. The controversy began, after all, when President Donald Trump suggested that Herzog grant the pardon.
Whether one sides with Netanyahu and believes that the entire case is a politically inspired travesty of justice or are someone who supports the effort to prosecute him, the suggestion was itself inappropriate. Trump may have proven to be the best friend that Israel has ever had in the White House, and he’s right that the ongoing trial is an unnecessary distraction from the vital diplomatic and security questions facing the U.S.-Israel alliance and the Middle East, in general. But this sort of heavy-handed American intervention into something that is clearly an internal Israeli concern is just wrong.
That being said, the reason why this matters to Trump is not merely a matter of him playing favorites in Israeli politics. The U.S. president may not be all that knowledgeable about Israeli politics, but he knows a thing or two about lawfare.
It is a sad fact of political life in Israel and the United States that the use of the law to target and take out opponents has become ubiquitous in the last decade. In both countries, liberal elites have sought to end the careers of the two men who were and are their principal nemesis. Ending the Netanyahu prosecution via the pardon route is a terrible idea. Nevertheless, stopping the prime minister’s trial — which began in 2020 and could, if not stopped by a pardon, go on for years to come — is something that ought to happen.
The analogies between the prosecutions of Trump under the Biden administration and the case against Netanyahu are inevitable, yet apt. If, as The New York Times suggested in a blatantly biased article stuffed with partisan anti-Trump and anti-Netanyahu talking points but still labeled as “news” claimed, the prime minister is using the same playbook employed by the president in his efforts to counter the charges against him, he has good reason to do so.
Whatever you might think of either man, their prosecutions were politically motivated.
The cases against Netanyahu are, if anything, even flimsier than the ones Trump faced.
The three cases — labeled Case 1000, Case 2000 and Case 4000 — are each insubstantial.
The first, Case 1000, centers on the allegations that the prime minister accepted valuable gifts, in the form of champagne and cigars, in exchange for political favors to wealthy donors. There is no proof that the alleged favors occurred, and evidence at the trial indicates that many of the gifts were intended for other guests of the donors. While it has become an article of faith among much of the Israeli public that Netanyahu took bribes, all he appears to be really guilty of is having rich friends and expensive tastes.
Case 2000 also lacks substance. It alleges that the prime minister acted improperly by discussing a possible bargain with the head of a critical newspaper in which the publisher would give Netanyahu favorable coverage in exchange for the prime minister supporting legislation that would hurt Israel Hayom, the pro-Likud newspaper owned by the late casino magnate and philanthropist Sheldon Adelson. Since nothing came of the conversation, the criminality is hard to find. The charge is also a joke because the effort to strangle Israel Hayom by the left-wing opposition parties and rival papers was itself an anti-democratic plot against freedom of the press that Netanyahu ultimately foiled.
In Cases 1000 and 2000, the specific charge is a breach of public trust. But again, even if there is something unseemly about a prime minister taking cigars and champagne or in having such conversations, there is no Israeli law that prohibits either of the alleged criminal actions. In other words, like some of the charges against Trump, they are the result of novel legal theories invented solely to take out a political opponent and completely untethered to the rule of law that Netanyahu’s opponents claim to be upholding.
Case 4000 seems a bit more substantial since it involves claims that Netanyahu traded regulatory decisions that favored the Bezeq Company in exchange for favorable coverage on its Walla news site. But since Walla remained consistently critical of the prime minister, it’s hard to see how that constitutes actual bribery. Even if it had flipped to favor the Likud, as in the other cases, there is no Israeli law on the books that says asking for favorable coverage — something politicians do all the time — is considered bribery.
So, while Netanyahu’s critics routinely call him the “crime minister” and speak of him in their weekly demonstrations as if he is a monster of corruption, if these appallingly thin cases are the best his opponents can muster to prove those assertions, then it is obvious that there’s not much to their claims other than partisan spite.
What’s also obvious is that the determination to pursue these cases with all the force a hostile liberal legal establishment can muster, including brutal and possibly illegal attempts to coerce witnesses into giving evidence against him, stems entirely from their frustration at being unable to get rid of Netanyahu through the existing mechanism for ousting politicians: elections.
While some of these allegations may stem from the prime minister’s sense of entitlement (the natural result of being in power so long), the real corruption here is not to be found in his behavior. Rather, it is that of a judicial system that allowed a campaign of lawfare to drag the country into a legal mess that never rose to the level that might justify trying to topple a sitting prime minister.
That the case took four years from the inception of the investigation to the indictments being handed down was a disgrace. That the trial has continued for five years, during which elections have been held and a two-year war fought with multiple enemies, is nothing less than a scandal.
Seen from that perspective — and given that the judges in the case have already indicated that the most serious charge should be dropped — perhaps Herzog would be right to end the circus of the Netanyahu trial.
Even if Herzog was inclined to do so, it’s highly likely that he would ask Netanyahu to admit guilt and/or to resign from public life in exchange for a pardon.
That is something Netanyahu shouldn’t promise since doing so would grant an undeserved victory to the prosecutors. Pressure from Trump, whose goodwill is an Israeli national security asset, may have forced him to apply for a pardon. Still, he should not budge from the position that if he is to accept one, it cannot be at the price of granting legitimacy to a legal travesty.
Nor would a pardon, as Netanyahu’s petition claimed, lead to national unity.
Nothing short of the prime minister being toppled from office and hauled off to prison will assuage the hunger on the part of Netanyahu’s opponents to discredit him. A pardon will only further enrage them. And far from calming the large proportion of the voters who do support Netanyahu, a pardon that provided a victory for their opponents without the benefit of actually beating him at the polls would further embitter them as well. It would deepen their distrust of what they already consider to be a judicial system whose primary purpose is to thwart the popular will, rather than defend majority rule against the desire of left-wing elites to hold onto power regardless of how many elections they lose.
The best thing for Israel is for the trial to play out, however long that takes, even if the judges should have dismissed the charges long ago. Only if, in the face of all the credible evidence, Netanyahu is nonetheless convicted should a pardon be considered.
Still, the effort to take the question of who should lead Israel out of the hands of the voters is a far greater threat to “democracy” than Netanyahu’s failed attempt to reform an all-powerful and out-of-control judiciary. His fate should rest with the verdict of the voters when they return to the polls sometime in the next year, not with a panel of judges sitting in a courtroom presiding over a marathon legal farce or a president with the power to pardon him.
Lawfare, such as we have seen in both countries, is the result of an intolerant brand of politics that views opponents as enemies to be delegitimized and destroyed, rather than fellow citizens with whom we might disagree. Attempts to imprison foes are wrong under any circumstance, let alone when they involve the sort of insubstantial charges lodged against Trump and Netanyahu. The cases against them are the stuff of banana republics, not democracies.