This was the week of the plea bargain: one that appeared to be floundering and another that was successfully concluded.
And the two are linked.
On Monday evening former prime minister Benjamin Netanyahu took to Facebook and, for the first time, addressed an issue that had dominated the news for the last two weeks: efforts to reach a plea deal with Attorney-General Avichai Mandelblit before the latter leaves office on Monday.
“In recent days false claims have been published in the media about things that I allegedly agreed to, such as that I agreed to the moral turpitude clause,” Netanyahu said, referring to a part of the deal being discussed that would have meant Netanyahu would be barred from politics for seven years. “This is simply incorrect.”
Tellingly, Netanyahu did not deny that negotiations were under way to reach a plea deal, only that he never agreed to a deal whereby the lesser crimes that he would admit to would carry the moral turpitude label.
The subtext: he was going to fight to get the moral turpitude classification expunged from any deal. And what gave him even the slightest hope that this could be achievable? The Arye Deri case.
Less than 24 hours after Netanyahu posted his video, Shas leader Deri entered the Jerusalem District Court. Deri is not unfamiliar with the court, having been convicted there in 1999 of bribery and sentenced to three years in jail (he served 22 months).
Back then Deri and his supporters said that he was the victim of a witch hunt, and blasted the judicial system for months. This time he went into the courtroom contrite, head bowed, without frenzied, chanting supporters outside.
A month earlier, Deri agreed to a plea deal whereby he would plead guilty to tax evasion violations, be fined NIS 180,000 and be given a 12-month suspended sentence. Significantly, there would be no moral turpitude clause, because he will have resigned from the Knesset (he did so on Sunday).
The moral turpitude clause applies only to those holding office, and since he resigned, the whole question is irrelevant, though it may become relevant if he returns to the Knesset after the next election. If he does, there is certain to be an appeal to the Supreme Court to prevent him from assuming any position, because of the stain of two convictions.
But the Supreme Court, ruling this week on a petition against the plea deal filed by the Movement for Quality Government in Israel, said that this question will be relevant if and when Deri tries to return to office, but not now, after he had resigned from the Knesset.
The Deri case – the deal he was able to arrange – likely had an impact on Netanyahu’s calculations in trying to secure a plea deal himself.
For surely if Deri, a repeat offender who now has admitted to breaking the law again after he served jail time, was able get a plea deal that enabled him to save his political career by elegantly sidestepping the moral turpitude clause by retiring from the Knesset, then certainly a similar deal could be cut with Netanyahu.
With the Deri precedent in mind, Netanyahu’s lawyers approached the attorney-general with a proposal whereby the most serious charge against the former prime minister, bribery, would be dropped, and Netanyahu would plead guilty to two lesser charges of breach of trust and fraud. Likewise, Netanyahu would agree to “pull a Deri” and also resign from the Knesset to sidestep the moral turpitude question.
The thinking seemed to be that what was good for Deri should be good for Netanyahu. Except it wasn’t, and Mandelblit reportedly rejected the offer, arguing that what was at issue in the Netanyahu cases was not mere tax evasion, but governmental corruption.
ONE OF the glaring questions regarding the sudden interest by Netanyahu in a plea bargain is why now?
Even if one accepts the argument voiced by Netanyahu supporters that his interest in a plea deal is not an admission of guilt, but, rather, just a sober realization that in this country’s trial-by-judge – rather than trial-by-jury – system, he will not get a fair verdict by judges who are products of the legal system that an acquittal would impugn, why did he not angle for a plea, or even push for a blanket presidential pardon, much earlier in the game?
This question is especially relevant considering that Netanyahu’s longtime lawyer Jacob Weinroth advised him, according to reports that emerged following Weinroth’s death in 2018, to agree to a plea deal back then.
At that time there were only two cases against Netanyahu: Case 1000 dealing with gifts and Case 2000 dealing with favorable coverage from Yediot Aharonot in exchange for curbing competition from that paper’s main competitor, Israel Hayom. At that time the Walla case, known as Case 4000, where Netanyahu is accused of giving Bezeq owner Shaul Elovitch favorable regulatory treatment in exchange for positive coverage on the Walla website which Elovitch owned, did not yet exist.
At that time, Netanyahu, had he resigned, could likely have gotten off without any jail time, without the dreaded moral turpitude label, and then been able – after a short hiatus from public life – to return again.
So why did he not jump at a type of deal then that he would surely clasp with both hands now? Because then, he was prime minister; today, he is head of the opposition. Then, he led the country; today, he leads only the Likud.
To take such a deal in 2018 would have meant vacating the Prime Minister’s Office for at least a certain period of time; now it means quitting the Knesset.
It’s one thing to give up the title of head of the opposition, and quite another to voluntarily stop being prime minister. This was especially true with Netanyahu then at the peak of his game, with an American president (Donald Trump) in power he was able to work with well, with peace agreements with Arab countries lurking on the horizon, and with elections looming that he thought he would win.
Had Netanyahu been able to put together a right-wing coalition following any of the last four elections dating back to 2019, then he possibly could have passed the so-called French law that would have shelved investigations into alleged crimes of a sitting prime minister until he leaves office. In 2018, with the passage of such a law a real option, why agree to a deal and have to voluntarily leave office for any period of time?
In retrospect, this seems to have been a serious miscalculation. But you can’t go home again, and what was possible in 2018 is not possible in 2022. From Netanyahu’s vantage point, however, at least what is possible in 2021 for Deri, should be possible for him in 2022.
When a way to sidestep the moral turpitude clause – an off-ramp available to Deri – was not made available to Netanyahu by the attorney-general, he then released Monday’s Facebook video denying he was throwing in the towel on this issue and pledging to lead the Likud in order to once again lead the nation.
DERI, HOWEVER, should not be the only disgraced politician Netanyahu might want to look at for plea-bargain precedents. Even though their alleged crimes are of a vastly different nature, Netanyahu should also pay attention to what happened to former president Moshe Katsav.
Katsav spent five years in jail on a rape conviction after rejecting a plea deal that would have had him admit to lesser sexual offenses and leave office, but avoid going to prison.
The deal was all set and ready to go in April 2008 when, a few days before the court hearing, certain revelations emerged that Katsav interpreted as beneficial for his case, and led him to believe that if he pursued it to the end, he would be acquitted. He gambled, lost and ended up behind bars.
Netanyahu was unable to get a deal similar to the one Deri just got. But – in weighing whether or not to accept a deal that would bar him from politics for seven years or gamble that the prosecution cases are falling apart and he will ultimately be acquitted – it is reasonable to imagine that at least some of those close to the former prime minister are advising him to consider what happened to Katsav.