Lawyers for former prime minister Benjamin Netanyahu and for Bezeq and Walla owner Shaul Elovitch on Thursday filed motions with Jerusalem District Court attacking the police and the state prosecution over a new scandal in which key witness Shlomo Filber’s cell phone was allegedly illegally hacked.
The former top Netanyahu aide turned state’s witness was due to begin his testimony sometime in the coming two weeks.
Apart from Filber, Netanyahu’s lawyers alleged on Thursday in Jerusalem District Court that hacking may have taken place regarding Elovitch, Nir Hefetz, Yair Netanyahu, Australian billionaire and Netanyahu ally James Packer, other former Netanyahu advisers, and persons close to Yediot Aharonot owner Arnon “Noni” Mozes, although much less is confirmed about the hacking against these other persons than regarding Filber.
Hefetz told The Jerusalem Post that even in the event his cell phone was hacked, he would deliver his testimony on behalf of the prosecution.
If Hefetz maintains that position, while there could be negative consequences for the police, who may have broken the law, there is a good chance that the court will deem the testimony legal and admissible.
The situation with Filber could be more complex since he has not yet taken the stand.
In the motions, lawyers Boaz Ben Tzur and Jacques Chen demanded that: 1. The prosecution must provide a full deconstruction of the scandal within days. 2. That this coming Monday’s hearing subject-matter be shifted from hearing witnesses to exclusively focusing on this issue. 3. And that the court reevaluate its view of the entire case to date and its expectations going forward.
After Wednesday night’s reports that were already partially confirmed by the police, the defense was expected to be granted some leeway to postpone Filber’s appearance and the testimony of some other witness until the prosecution has assessed the latest scandal and forwarded all relevant material.
It is also possible that the prosecution and the defense could engage in a legal battle about how much data relating to the latest police-NSO cellphone hacking scandal must be disclosed – something that could lead to a delay of the trial by several weeks.
According to the reports, the police cyber unit did not pass on the information it gleaned to its investigations department, or the state prosecution.
Despite that qualification, a new revelation that the police may have used illegal cyber tools even in collecting intelligence on someone at the center of the Netanyahu cases sent shock waves among those following the case and led to wild speculation about altering its course.
In the most radical scenario, the latest news could undermine the prosecution’s credibility with the court and empower Netanyahu to seek an improved plea deal.
Alternatively, the prosecution may eventually seek to downplay the issue as irrelevant to the trial if they did not use it to prove the charges against the former prime minister.
Unlike the US, Israel does not have as strong a “fruit of the poisonous tree” principal which leans toward automatically disqualifying evidence obtained illegally, even if the evidence is true and proves the allegations.Instead, Israel allows the court’s discretion to allow illegally-obtained evidence if they view it as credible and decisive.
Ironically, Justice Minister Gideon Sa’ar, a fervent Netanyahu critic, is pushing to enact legislation to come down harder on the police for such abuses.
But the law that the courts would apply to the Netanyahu case would be the law that was in place when the case began in January 2021.
In any event, Ben Tzur and Chen said that the prosecution must explain: 1. When any illegal hacking occurred. 2. Which police officials were involved in the hacking and had knowledge of, or approved the hacking up the chain of command. 3. Whether any byproducts of the hacking were used to interrogate witnesses in the case. 4. Whether any evidence acquired by later court orders was obtained as a result of the hacking, without disclosing to the courts that illegal hacking had taken place.
The more the police or prosecution’s case benefited directly or even indirectly from the hacking, the more it could lead to motions by the defense to disqualify items of evidence and even for a mis-trial.
To the extent the hacking did not benefit the case, the sting for law enforcement might be limited to consequences for those involved in illegal hacking activity, but without harming the case against the defendants.
Channel 13 also reported Thursday night that earlier this week, police may have initially misled the prosecution about what it did, or didn’t do in its hacking.
These allegations are the latest spinoff of the Police-NSO affair that has shaken the police to its core in recent weeks.
The motions also presented a transcript of a recording showing that some police investigators learned about the use of the cell phone hacking tool and were discussing it just before they questioned Filber.
The transcript indicated that the investigators appeared to think that the hacking was illegal, but that they might not have been part of the decision to initiate it.
Already on Wednesday night, sources close to Netanyahu said that the report was “an earthquake” and accused the police of “polluting the investigation process.” They vowed that there would be “enormous consequences.”
Lawyers for Elovitch said that if the report was true, it would represent “a grave crime” and that there would be serious consequences in court.