The bribery case against Netanyahu: an extremely wobbly house of cards

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The claim that “Netanyahu is corrupt” is so central to the left’s narrative that it’s no surprise that a large part of the media has made – and is still making – a heroic effort to hide from the public the facts about what is happening in Case 4000.

This is the only case in which Benjamin Netanyahu is charged with bribery (for allegedly offering regulatory favors in exchange for favorable media coverage). The indictment rests upon an unprecedented legal construction that ought to have set off warning bells from the start: The idea that favorable coverage can be a bribe is a global innovation by Israel’s State Prosecutor’s Office.

But that is just the beginning of the story. The continuation is that once this construction encountered the evidence, it turned out to be an extremely wobbly house of cards. As long as it was possible to control the narrative, by means of selective leaks and political propaganda disguised as “legal analysis,” the impression could be created that obviously the former prime minister is guilty, and all that remains is to formally prove it in court. But once the trial started, the press – and the state prosecutor – lost exclusive control of how the case is portrayed.

The court system has a set procedure that requires that both sides be heard. Legal reporters who are big fans of the state prosecutor can blather on as much as they like without reporting on the cross-examination of Ilan Yeshua (then-CEO of Bezeq’s Walla news site), but the defense’s questions and the witnesses’ answers cannot be erased from the protocol. Which is how something that is no less than astonishing has gradually become apparent: At the heart of the state prosecutor’s flagship case, in the most important bribery trial in Israel’s history, there is basically just a vacuum. The prosecution is not quite managing to explain what exactly constituted the bribe in the case.

Let us recall: The investigation began with the suspicion that then-Prime Minister Netanyahu accepted a bribe in the form of “favorable coverage” from the Walla site, which was then controlled, as was Bezeq, by Shaul Elovitch, and provided “regulatory benefits” in return. But the investigation found that, in general, the coverage on Walla was hostile to Netanyahu, displaying more or less the same amount of venom toward him that is standard in the left-wing press.

This is no trivial matter. It is more than a little strange when what’s missing from a charge of bribery is the offering of the bribe. It’s as if we had an investigation about a bribe that was given in cash-stuffed envelopes, and suddenly we find out there actually were no cash-stuffed envelopes. So how is it possible to construct a (precedent-setting) theory about favorable media coverage as the currency of the bribe, if there were no favorable coverage?

Rather than back off this charge and admit that it was too much of a stretch, as would have been appropriate, the State Prosecutor’s Office beat a tactical retreat: It replaced “favorable coverage” with something much blurrier that doesn’t even describe said coverage.

In the list of accusations issued in February 2019, the bribe was given a new definition: the Elovitches’ “compliance,” which was “unusual by any standard media criterion,” with the demands of defendant Netanyahu. Problem is, no one could say just what this “standard media criterion” is. Therefore, in the indictment, filed in June 2020, the bribe was reduced to “unusual compliance” with the defendant’s demands. As we shall immediately see, the question of the “criterion” continued to dog the convoluted attempt to impose the offense of “offering a bribe” on routine behavior of politicians and journalists.

Let’s set aside all the problems that have been exposed in this case and which, in a properly functioning lawful state, would have prompted efforts to throw it out of court: improper pressure exerted to obtain deals with state’s witnesses; the absence of written approval from the attorney general to open the investigation, as required by the Basic Law: The Government; the apparent concealment of critical evidentiary material from the defense team; omissions from the written records of the proceedings that – as luck would have it! – covered up failures by the state prosecution; and on and on.

Let us concentrate solely on the question of the bribe, since the idea of “unusual compliance” has also quickly turned out to be problematic, not just in the view of Netanyahu’s legal team, but in the view of the judges themselves. Or as Judge Oded Shaham put it, roughly: “We are not certain that it is sufficient to say that there is a forest without talking about the trees that make up the forest in this case” (Dec. 14, 2020). In other words, the prosecution needs to provide full elaboration regarding that “unusual compliance” and not just put forward a general argument about its existence.

Consequently, the prosecution prepared a list of 315 instances that allegedly constituted evidence of so-called unusual compliance with demands made by Netanyahu. Meanwhile, in addition to being examined by a defense team, a group of about 60 volunteers – ordinary people, acting on their own volition – mobilized to sit and check all the items on this list, tree by tree. They called themselves Project 315. The results of their review can be summed up as follows: No trees and no forest.

According to Project 315, in nearly half the instances presented by the prosecution, there is no mention that Netanyahu was involved. In a large portion of the ones in which he was involved, according to the prosecution, there was no compliance at all, not to mention unusual compliance. Articles that the prosecution claimed were removed are still available on the news site, and articles that were promised to be posted were never posted.

Let’s hope this can be chalked up to negligence – unfathomable ignorance in such an important case – and not, god forbid, deliberate deception.

It also turns out that in many instances, the “demands” that were complied with so unusually, allegedly, were nothing more than messages sent by spokespeople to numerous media outlets, and published in other places too. There is certainly nothing unusual about that. According to Project 315, there are only a handful of instances where there was compliance that could perhaps be termed unusual.

But that is on the condition that we first understand what the norm is from which they deviated. And, astoundingly, the State Prosecutor’s Office determined that the compliance was unusual without first determining what constitutes standard practice – that is, it did not examine what kind of “compliance” other politicians received from Walla, or what happens in other media outlets.

Ironically, this subject came up when it became apparent from the material the prosecution allegedly tried to hide from the defense that Ilan Yeshua “complied” with then-Labor Party leader Isaac Herzog (and many others) in a way that bordered on groveling. So if he complied with requests from Herzog to the same extent – or more – than he did to requests that came from Netanyahu, maybe this is how he acted with everyone? Maybe this is how other media outlets act too? And if so, maybe there is also nothing unusual about the behavior of the Elovitches? Not only did the state prosecution not have an answer to these questions – it apparently did not even ask them. It determined that something was irregular without first determining what was regular.

But some of us, those who consume the news with a healthy dose of skepticism, who don’t religiously buy the “Netayahu is corrupt” narrative spun by the media, actually know what is normal and regular around here. Because anyone who bothered to look around knows, for example, that among those who worked to promote the “Israel Hayom law,” like Ayelet Shaked and members of Yesh Atid, were some who received plenty of fawning cover articles in the daily Yedioth Ahronoth – favorable coverage at the highest decibels, not some speculative “unusual compliance” that no one can define.

So it is harder to convince us that Netanyahu accepted a bribe, in the form of non-favorable coverage, on an unimportant website like Walla, and in return gave “regulatory benefits” that, according to the defense, were not opposed by regulatory officials (the “regulatory benefits” were also downgraded in the trial to “governmental actions”). With all due respect, there are politicians here who worked to advance legislation that was designed to close down a newspaper in return for a constant flow of compliments in a competing paper. So to say that the indictment against Netanyahu has been forced, and a clear example of arbitrary enforcement, would probably be the understatement of the year.

So it’s understandable why the judges in this trial appear to be squirming uncomfortably in their seats and are repeatedly scolding the prosecution. They feel, perhaps rightly, that the latter has stuck them in a trap. If Netanyahu is convicted of bribery, the judges, not the prosecutors, will be the ones whose names are henceforth be attached to the mush cooked up at the State Prosecutor’s Office. And they may not be too keen on such a possibility.

But there is a positive side to all of this, too: The Netanyahu trial has opened a lot of people’s eyes and may wean us from our naivete. Anyone with eyes in his head sees that if this is how a (formerly) serving prime minister is treated, an ordinary person has no chance against a state prosecutor that places a conviction ahead of justice, and is prepared to trample all rules and norms on the way to that goal. Which means that Israel is not exactly a state of law, and that we are not exactly a free people in our land. In the chilling words of attorney Avigdor Feldman: “The state prosecutor can wipe out any person in Israel.”

Now we all see how.  

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