Leaks from criminal investigations to the media are always illegal.
Yet, as of Tuesday, leaks against former prime minister Benjamin Netanyahu regarding his public corruption trial might not only be illegal, but they might be causing real harm to the prosecution.
How did we get here?
Rewinding, there was some sense that when Netanyahu was still the prime minister and his close associates had potential influence over the state prosecution and police, leaking to the media might be a way for police to make sure the case would go to trial.
Even if leaks are bad in general, there is some history and basis for leaks to the media to prevent the most powerful authorities of a nation from covering up their allegedly illegal activities.
Put simply, if you make enough noise, a cover-up becomes hard if not impossible.
That was how The Washington Post famously beat former US president Richard Nixon’s attempts to cover up his illegal activities against his political opponents.
If you do not, then sometimes bad people with power can make their bad acts disappear.
Even then, the leaks against Netanyahu probably continued for far too long and in too high a volume (by November 2020 there had already been well over 100 separate leaks).
Also, many of them did not contribute to proving the charges and were just designed to be politically embarrassing to Netanyahu.
Many of the leaks happened after Attorney-General Avichai Mandelblit had already filed an indictment against the prime minister in January 2020.
What was the purpose of the leaks then?
Maybe one could argue that because there were concerns that Netanyahu would use the coronavirus crisis to indefinitely delay his trial, more noise was needed to make sure this did not happen.
But after a two-month delay from March 2020 to May 2020, Netanyahu’s trial proceeded.
What was the purpose of the many leaks after that date?
By April of this year, witnesses were being called. The real meat of the trial before a three-judge panel was moving forward, if not at lightning speed, at a steady pace.
By mid-June of this year, Netanyahu was no longer even the prime minister.
How is anyone justifying leaks of criminal investigations to the media – and before defense lawyers even view the evidence – at this point?
The judges were horrified on Tuesday and clearly felt personally wronged as the leaks could lead to questioning the fairness of the trial itself.
Deputy State Attorney Liat Ben Ari claimed to be equally horrified.
Her message seemed to be that the new evidence was not necessary to win any of the three cases against Netanyahu and had put the prosecution in an unwinnable predicament: ignore new evidence or produce it at an awful time, which would smack of politicizing the process.
Maybe the judges would have delayed Hefetz’s testimony anyway simply because of the new evidence.
But sitting in court on Tuesday, it seemed that if there had been no leak to the media, the judges might have forced the defense to take the hit, since there was no obvious connection between the new evidence and Hefetz’s testimony.
However, the leak seemed to anger them and the defense so much that it seemed that granting the postponement was a way to draw some blood from the leakers.
This leak and any future leaks mid-trial could anger the judges even more and turn them against the prosecution, who the court harshly rebuked (despite their denials that they did any of the leaking).
Whoever is leaking at this late date is no longer helping speak truth to power and may very well be harming the prosecution’s case against Netanyahu.