Prerequisites to get to a plea deal are likely to include court mediation as well as former prime minister Benjamin Netanyahu agreeing both to exit politics and publicly confirming most of the prosecution’s narrative about him, according to a mix of sources on both the prosecution and defense sides.
As the lawyers return to court on Monday to continue hearing witnesses in the shadow of the scandal of police hacking cellphones of one or more Netanyahu associates, a plea deal is still possible in the coming weeks and months.
Direct court mediation would be needed to reduce the prosecution’s view of the strength of its case and to solve trust issues that the Netanyahu team has that law enforcement could use a Netanyahu offer to damage him politically without actually letting a deal with no jail time go through.
From the prosecution’s perspective, even an exit by Netanyahu from politics will be insufficient if he does not issue a public statement, confirming most of its narrative about his actions.
The prosecution has seen how it was lambasted by Shas Party leader Arye Deri after giving him a lenient plea deal that did not formally set how he could comment on the case in public. It is committed to not making the same error with Netanyahu.
Prosecutors are still on edge about where the cellphone-hacking scandal will take the case. But they are starting to prepare to dig in for a defensive line that no part of the indictment can actually be damaged by the affair.
The Jerusalem District Court on Friday gave the prosecution some breathing space on the cellphone-hacking scandal, ordering that witnesses proceed to testify as scheduled on Monday, despite the defense’s demands that the scandal halt all testimony.
In addition, the court ordered the prosecution to provide an update on the scandal by Tuesday.
The Israel Police would be providing its findings to the prosecution by Monday morning, so the prosecution will have a day to review them before forwarding them to the defense, Channel 13 reported Sunday night.
The impression, however, was that the court will allow the next two witnesses to testify this week and only address the scandal before the testimony of former top aide turned state’s witness Shlomo Filber.
Moreover, on Sunday, there were more reports that any hacking of Filber’s phone might have taken place in 2018, months after a court had already given the police full access to his phone in 2017.
It was still unclear why the police would have decided to hack his phone after having had access to it months earlier.
But if the first stage of the scandal seemed to lead toward a monstrous expansion of illegal hacking by the police against Netanyahu’s associates, the second stage may be starting to outline that the hacking, even if illegal, might have been ancillary to the case.
On Thursday, lawyers for Netanyahu and for Bezeq and Walla owner Shaul Elovitch filed motions with the court attacking the police and the state prosecution over a new scandal in which Filber’s cellphone was allegedly illegally hacked.
Filber had been due to testify in the coming weeks.
On Monday, the government is expected to approve Gali Baharav-Miara as the next attorney-general, which will leave addressing this issue one of her first points of business even as Justice Minister Gideon Sa’ar had hoped to get the Attorney-General’s Office out of issues relating to the prosecution.
Any police officers who broke the law would be dealt with, Sa’ar said Sunday, without making any comments indicating damage to the case against Netanyahu.
Netanyahu’s lawyers said the cellphones of multiple key players in the trial besides Filber’s had been hacked. These include Elovitch, Nir Hefetz, Yair Netanyahu, billionaire tycoon and Netanyahu ally James Packer, as well as former advisers to Netanyahu and people close to Yediot Aharonot owner Arnon “Nuni” Mozes.
As of Sunday, there was still no concrete evidence of hacking anyone other than Filber.
Moreover, last Thursday night, Hefetz told The Jerusalem Post even in the event his cellphone had been hacked, he would stand by his testimony for the prosecution.
If he maintains that position, then while there could be negative personal consequences for police who might have broken the law, there is a good chance that under Israeli law, the court will allow his testimony to stand.
Filber has signed an immunity deal.
Although Filber has expressed anger in recent days on Twitter at the police over the hacking of his cellphone, there has been no indication he will recant his accusations against Netanyahu.
If Filber still points the finger at Netanyahu like Hefetz, then the prosecution will have hit its two main points to prove its case.
Still, the defense has been emboldened by the hacking scandal, and once Baharav-Miara gets situated, they believe the latest developments plus court mediation might bring the prosecution back down to earth about the risks of continuing the trial until the end.
The police have not pointed the finger at the prosecution, and prosecutors have appeared generally surprised and off balance. But some anonymous former police officials have generally alleged that the prosecution knew about cellphone hacking in the Netanyahu case.
If any of these officials come to testify for the defense at trial, the prosecution could truly be in a tight spot.
In their motions from Thursday, lawyers Boaz Ben Tzur and Jacques Chen demanded three things:
- The prosecution provide a full deconstruction of the scandal within days.
- The subject matter of this Monday’s hearing be shifted from witness testimony to exclusively focusing on this issue.
- The court reevaluate its view of the entire case to date and its expectations going forward.
The defense was expected to get some leeway to postpone Filber’s testimony and possibly other testimonies until the prosecution assessed the latest scandal and forwarded all relevant evidence to the defense.
The court’s initial ruling is an indication that unless the scandal harms evidence presented at the trial, the judges may say it should not help with Netanyahu’s defense and leave disciplining the police to the police and the prosecution.
It is also possible that the prosecution and defense could engage in a legal battle regarding how much data relating to the latest police-NSO cellphone-hacking scandal must be disclosed – something that could delay the trial by several weeks.
According to some reports, the police cyber unit did not pass on the information it gleaned to the Justice Ministry’s Police Investigation Department or the prosecution.
Unlike the US, Israel does not have as strong a “fruit of the poisonous tree” principle that leans toward automatically disqualifying evidence illegally obtained, even if the evidence is true and proves the charges. Instead, Israel gives the courts discretion to allow illegally obtained evidence if they view it as credible and decisive.
Justice Minister Gideon Sa’ar, a longtime critic of Netanyahu, is pushing for a bill to make Israel tougher on the police for such abuses. Either way, the law that courts would apply to the Netanyahu case would be the one that existed when the case started in January 2020, not laws adopted later.
All of these allegations are the latest spin-off of the police-NSO affair, which has shaken the security service to its foundations in recent weeks.
The defense team’s Thursday motions also presented a transcript of a recording showing that some police investigators learned about the use of the cellphone-hacking tool and even discussed it right before they questioned Filber.
The transcript indicated that the investigators seemed to think the hacking was illegal but that they might not have been part of the decision to initiate the hacking.
A voice expert had used biometric methods as well as comparisons to public interviews to conclude that the two investigators recorded were Yoav Telem and Tzipi Gaz, Netanyahu’s Sunday night.
This showed that senior police investigation officials were involved or knew about the illegal cellphone hacking and cannot limit the illegality to the police cyber department, the spokesman said.
It was unclear to what degree the court would take into consideration the nine-page report by the voice expert, who claimed high certainty but acknowledged voice identification can be difficult.