Most investigations against Netanyahu ended with no findings, but the legal system does not draw conclusions and is creating precedent. The Failure of the Investigations Industry – a situation report
A massive police project that has been ongoing now for about seven years is scheduled to come to an end in a matter of weeks.
Years of work by scores of investigators have been invested in the project, tremendous resources, flights abroad, countless investigations, widely reported leaks and the intensive work of the best police and prosecution minds.
After such a period of investment, the efforts exerted should finally come to fruition, when the police will decide on whether to recommend that an indictment be presented against Prime Minister Benjamin Netanyahu.
The waiting period until then gives us an opportunity to review and to try and characterize the most puzzling and serious project in Israel in recent years: the investigative industry against the prime minister.
An Old Industry
The investigative industry against Netanyahu is so old that it could receive tenure. It began with his first term from 1996 to 1999. At that time, Netanyahu was questioned in an affair called “Bar On-Hebron”, which close to the end of his term was joined by the “Gift receiving” affair and the contractor bribery affair, the “Amedi” file, who was also a state witness.
Back in those days you had screaming headlines, leaks by the interrogators, and the media constantly pumping the prime minister’s “corruption” and “hedonism.” The damage done to Netanyahu’s image was etched into the public consciousness and hurt him dearly. However, to the disappointment of those involved in creating the hostile atmosphere, legally the three cases did not hold water and ended without an indictment.
Of that period, in an interview with “Mida”, retired police Superintendent Boaz Gutman said:
“During the investigations into the Bar On-Hebron affair, I was part of the team that investigated Avigdor Lieberman, who was then director-general of the Prime Minister’s Office. It was clear very early into the investigation that everything was a bluff and there was no case. I immediately informed the Attorney General at the Prime Minister’s Office that the investigation should be shut down for lack of guilt. On the following Sunday a very senior officer with the unit comes to me and says in these words: ‘Because of you the Labor Party will not come to power.’ Although he was two ranks my senior, I told him I would knock his ranks off his shoulders if I heard something like that again. “
Gutman said similar things of the other two investigations. Though the investigations dissipated as quickly as they rose, their impact was considerable. They were run with endless leaks to the media, and became a powerful propaganda weapon for Netanyahu’s opponents.
The New Investigations
Returning to the present. Let’s look at how many offenses law enforcement agencies are currently examining, although it is not clear whether all of them have been officially investigated:
Four cases which the Attorney General announced their closing in January 2017:
(1) prohibited financing of the 2009 elections;
(2) falsifying the results of the primaries in the Likud Party in 2009;
(3) “Bibi Tours” – double financing of official trips;
(4) “Bibi Tours” – financing by wealthy associates.
These probes, and especially the “Bibi Tours” case, created a cloud of corruption over Netanyahu’s head for six whole years. But, like the three investigations we mentioned during his first term, these too, were closed with no indictment.
In the so-called “Prime Minister’s Residence” probe, seven different issues have been investigated since 2015:
(5) the waiters;
(6) the electrician;
(7) nursing care for Sarah Netanyahu’s father;
(8) the bottles;
(9) heating mushrooms (“garden furniture”); and
(10) Yartzeit candles.
All of these were closed in September 2017.
One probe is still ongoing:
(11) “the Meal-booking” affair”. This case, in the worst case scenario, is an administrative matter without criminal significance. It also has nothing to do with the prime minister himself but with his wife. Recently, a hearing was held in the case, and it is awaiting a final decision by the Attorney General.
Another episode that made a lot of media noise is:
(12) the “Mimran” affair. After endless media reports of illegal contributions by French billionaire Arnault Mimran to Netanyahu, the Attorney General ordered a probe in June 2016, but apparently this did not materialize into an investigation. The affair evaporated.
Then there is –
(13) the “Odelia Carmon” affair. Suspicions arose about the salary she received from the American Friends of Likud chapter when she worked for Netanyahu. This, too, apparently did not ripen into an investigation.
To these three probes, one must add these:
(14) The “champagne and cigars” gifts received affair, nicknamed file “1000”,
(15) The Yediot Ahronot newspaper publisher, Arnon “Nooni Mozes” affair, nicknamed file “2000”.
(16) The “3000” file. Netanyahu is not a suspect in this probe, but there is little doubt that the investigation was accelerated due to the fact that at first they believed that it would lead to Netanyahu.
By this calculation, in the ten years of his current tenure, 19 probes and investigations by law enforcement officials were opened against Netanyahu.
As mentioned above, a huge project involving dozens of senior officials has been taking place over a long period of time, over several continents, with enormous costs, and with considerable effort to recruit state witnesses against Netanyahu.
Until now, the large-scale project has yielded one poor result, the “Meal-booking” affair, which has nothing to do with the prime minister. Now we are waiting to see whether it will be decided to file an indictment over the acceptance of champagne and cigars from friends, or over the recorded dialogue with the publisher of Yediot Ahronot concerning conspiring on the Israel Hayom issue.
This is undoubtably a very meager output, taking into account the extent of investment by the police and the prosecution in the project. But what is left wanting due to the lean legal outcome is more than made up for with the cumulative public-media outcome, the “cloud effect” that accompanies Netanyahu.
At any given moment there is an investigation in the air, leaks, rumors, questioning and summons. These, even if they do not materialize into an indictment, seriously hurt Netanyahu’s public image and reputation.
There is also a significant problem here, because the great and well-publicized effort creates a clear incentive for investigators and leaders of the legal system to file an indictment so that they will not have to admit to such outrageous waste of public resources.
But this is far from being the only substantive problem in the Netanyahu investigation project.
There is no doubt that Netanyahu receives special treatment from the law enforcement system. In his case, every news headline is a call to action and any journalistic publication results in the full mobilization of the probe and investigation systems. Thus, the authorities become partners to the constant pressure of the press to incriminate Netanyahu and oust him from power.
There are those who believe that this is acceptable: after all, if information is published, it is the duty of the law enforcement bodies to thoroughly examine it and arrive at the truth.
This argument may be appropriate, on one condition: that similar information will lead to similar investigations in every case of a public figure. A necessary condition for the rule of law is equal enforcement without discrimination and bias. But if the publication of information leads to an investigation in one case and is abandoned as if it did not exist in another, there is then great concern that the law enforcement systems have become a tool for overthrowing the government for political reasons. The exact opposite of the proper functioning of the authorities in a democratic state.
There is no doubt that the investigation industry against Netanyahu suffers from severe selective enforcement. A prominent example of this is the fact that while the police are investigating the prime minister in the “2000” file, and examining whether there was an attempt to bribe him in his contacts with the publisher of Yediot Ahronot, Nooni Mozes, it is not investigating an affair on the very subject which occurred that same exact year: Promoting the Israel Hayom bill in the Knesset.
The reason this affair is much more serious than the “2000” file is because unlike the conversations between Netanyahu and Mozes, in which nothing practical came about, the Israel Hayom legislation was actually advanced in the Knesset.
About two weeks ago, MK Eitan Cabel was questioned under caution, on suspicion of fraud, breach of trust and obstruction of justice in the context of the advancement of the proposed legislation. But even if Cabel was the driving force behind the 2014 legislative proposal targeting Israel Hayom’s operations, he is only a minor player. He is not responsible for the fact that the representatives of the four parties that were members of the government supported the bill, and is not responsible for the vote of many of the Members of Knesset of these parties in favor of the law in a preliminary vote. The promotion of the Israel Hayom law was in opposition to the opinion of the prime minister and his party, and even led to the downfall of the young government.
This raises significant suspicion. If the talks between Netanyahu and Mozes, which bore no fruit, deserves an investigation, then the Israel Hayom bill certainly deserves investigation. This is how the logic of the rule of law works, not selective enforcement.
Another example of selective enforcement is the “Prime Minister’s Residence” affair, which was opened following the State Comptroller’s report, published in February 2015. It was the State Comptroller’s first such report on the Prime Minister’s Residence, meaning that the report dealt with a framework that had not been audited before, It should have been treated as a report to establish procedures and norms. Nevertheless, seven police probes were opened as a result.
Interestingly, on the very same day that the report on the Prime Minister’s Residence was published, a report was also published on the President’s Residence. With regard to the President’s Residence, this was a second such report. The State Comptroller also examined whether the President’s Residence corrected deficiencies from the first report. This report was far more severe than the report of the Prime Minister’s Residence. The flaws were much more serious, the flaws found had not been corrected, and in particular, the budget overruns of the President’s Residence reached into the deep millions.
But the findings of the report received zero attention from the law enforcement system. The president at the time was Shimon Peres, who apparently enjoyed the protection of other reports regarding receiving gifts and donations from wealthy people. Is this what the rule of law looks like? Not at all. This is what selective enforcement looks like.
Another example: the F35 fighter jets acquisition deal and the suspicions it raises regarding Ehud Barak. “The Marker” raised about a year and a quarter ago suspicions that are remarkably similar to those raised in the reports that preceded the opening of the probe into the “3000” file. But it is amazing that when it comes to Ehud Barak and others, it turns out that there is no need to open a probe and an investigation.
In summary, this is not how the law enforcement system under the norms of the rule of law operates. This is how selective and improper enforcement looks, and which bears the mark of the rule of law in vain.
The problem with the Netanyahu investigation project is not only its scope and its selectivity, but also its content. We have already seen that all the previous probes in Netanyahu’s case have been closed, with the exception of the “1000” and “2000” files. It lends itself to question: Are these, in terms of the law, cases that justify the enormous resources invested in them? This is, let us not forget, probes that have brought the entire political system and state into a whirlwind.
When you take a step back and look at the files without the media clamor, the dramatic voice of the news announcers and the commentators and the screaming headlines in the newspapers, you realize that these files, like their predecessors, deal with trifles. In other words, it was possible to know in advance that they were unnecessary, and that the huge investment was simply unjustified. This is easy to understand that when you see that should an indictment be filed, it will constitute a legal precedent.
Let’s start with the “2000” file. Beyond the selective nature of the investigation, in relation to Israel Hayom legislative bill, it should be noted that the subject of the investigation is precedent-setting. Even [Israeli investigative reporter] Raviv Drucker, a man who devotes much of his screen time to the struggle against Netanyahu, told Yediot Ahronot in August 2017:
“In my opinion, the Nooni Mozes case will end without an indictment. As much as the conversation is ugly, from the Attorney General’s point of view, to translate the relationship into criminal law is something that has never been done, and to create precedent with the prime minister of all people will be a very difficult leap.”
“It’s never done,” Drucker says, and rightly so. Senior media executives have always maintained complex relations with the country’s leaders. They have lobby groups, they have connections, and there are conversations and even a reasonable give-and-take relationship between journalists and politicians. To this day it is considered completely legitimate. There is no lack of evidence for many of these relations. This is an accepted practice, and it is hard to imagine a functioning democratic state without them.
Therefore, there is no chance that these matters will lead to an investigation and a criminal indictment. I mean, as long as it’s not Netanyahu.
We are left then with the “1000” file, the “gifts” file. In this case, the incredulity and precedent are even greater. In 2006, then-Attorney General Menachem Mazuz ruled that the gifts given to Prime Minister Ehud Olmert, estimated at NIS 1.3 million, should not be investigated. “Not every gift creates the suspicion of receiving an improper benefit,” Mazuz said. The decision was petitioned to the High Court of Justice which unequivocally rejected the petition.
(…) The said amounts were higher than in the Netanyahu case. But the enforcement agencies concluded that there was no offense committed that justified an investigation.
Why, then, was an investigation opened against Netanyahu in the gift affair? Why suddenly gifts from old friends are viewed in a different, even criminal, light?
This is of course only an example. Over the years, many politicians have received personal, non-biodegradable and high-value gifts. The reason for not opening an investigation is simple: it is customary to start such investigations either when a change is revealed that is a clear bribe, such as personal money transfers; Or on the when suspicion of bribery arises as a result of unreasonable activity by a politician to promote the interests of someone else.
In Netanyahu’s case though, everything is working backwards. They are taking a tiny thing like cigars and then turning every stone to argue that there might have been a bribe here.
They present every reasonable action taken by Netanyahu (such as helping to obtain an American visa for a person who took advantage of his position to make a major contribution to Israel’s security) as possible proof of bribery. Thus, what was at most an administrative offense, was investigated. In any other instance such activity would not have amounted to a criminal investigation. All this is creating precedence and is most severe.
Guilty Until Proven Innocent
A sign at the Petah Tikva demonstrations [outside the home of the Attorney General] read “Bibi is guilty – until his innocence is proven”. Apparently, the investigative industry against Netanyahu’s works according to this assumption. This is completely contrary to the presumption of innocence, a cornerstone of Western liberalism.
Netanyahu is “guilty”, and therefore investigations are opened on the basis of every headline in the newspaper. The investigation systems are constantly trying to recruit state witnesses, leaks from the investigations keep coming one after the other, and everything is operating not for the purpose of uncovering the truth, but with the purpose of getting a conviction.
Instead of closing these unnecessary and preliminary cases, the investigators, who have already committed themselves through their endless leaks to the press to “earth-shattering” findings, continue to search and search. In the meantime they are creating a cloud of harmful suspicions.
Superintendent Boaz Gutman, revealed the political motivation behind the investigations in Netanyahu’s first term. Only time will tell us the reasons for the burgeoning investigative industry that is occurring today.
What is certain is that, based on their selective and precedent-setting conduct, this is a clear indication of the marking of the prime minister. This is a clear and ruthless subversion of the Israeli democracy. As such, it is not only wrong, it is a dangerous phenomenon.
*(Translated from Mida.org.il Hebrew)
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