Press accounts suggest that you are on the brink of concluding a plea deal with former prime minister Benjamin Netanyahu to settle the three cases for which he is standing trial. Depending on how you finalize the plea bargain, this can be an important moment to bolster Israeli democracy, as well as upholding the supremacy of law over corruption, no matter how high the rank of the abuser. As well, a successful resolution will validate your judgment and role as attorney-general, having indicted a powerful sitting prime minister.
For this act of integrity, you have faced an unrelenting campaign of unfair charges that you conspired to undermine the public’s choice for leader. These false allegations twisted your motives and besmirched your character. While you have held fast without yielding to bullying and without being able to fully defend yourself, you deserve this confirmation of your integrity before you move on with your career.
Three elements will decide the value and outcome of the final arrangement of the plea deal. The first is your decision to promise the former prime minister that he will serve no prison time, despite the gravity of his crimes. There is significant criticism - not just from the intensely anti-Netanyahu circles – that you excessively reduced the penalty. Still, but you made the right decision.
This get-out-of-jail-free card is not just, as former Supreme Court chief justice Aharon Barak said, a reward for his past support of an independent judiciary. When it served his political purposes, Netanyahu stood against the desire among his allies in nationalist and ultra-Orthodox circles to weaken the High Court, angry at the High Court’s constant advancement of equality and justice in Arab and religious matters.
More important: were Netanyahu to serve jail time, he would become a permanent martyr in his base’s eyes. He would be a false equivalent to Captain Dreyfus, who, once incarcerated, was permanently held up as proof of the illegitimacy of the legal authorities. Some may argue that letting Netanyahu off constitutes a reward for misguiding his base but bringing them back into honest, trusting participation in the political process is a more urgent societal need than punishing Netanyahu. Many Israelis have not yet grasped that an ever-deepening polarization is a mortal threat to Israeli democracy. This is not the time to create another factor that will permanently inflame the political situation. I might add that the moderate Israeli public would also be ‘relieved’ that a prime minister - especially one who made important contributions to Israel - not sit in jail as a common felon.
Furthermore, not punishing Netanyahu to the full extent he deserves would play a positive role going forward in overcoming the intense political polarization that is harming Israel’s democratic culture. In 1974, then-president Gerald Ford pardoned his predecessor president Richard Nixon for his crimes in the Watergate Affair before a trial was held. In his judgment, a trial and a punishment would have further polarized the public and prevented America from moving on.
At the time, Ford was criticized and suffered some political danger, but he was right. In the past decade, we have seen how the polarization that he prevented or delayed by excusing Nixon from prison has returned. Extreme polarization is corroding central institutions and the need for a respectful political process in the United States, putting its democracy at risk. The present polarization in Israel is just as threatening. Any gesture which enables the public to move beyond Netanyahu’s divisive behavior and rhetoric will strengthen Israel’s currently fragile democracy.
The second element is your determination to attach a moral turpitude label to his plea. The resultant conviction will remove Netanyahu from politics for at least seven years. This would reflect the judgment that being removed from politics is a serious punishment – the next weightiest to serving prison time. This sanction penalizes corruption, showing the public that even the powerful are held accountable. As well, it will somewhat deter politicians from such behavior in the future. Leaving this determination of moral turpitude to the judges weakens this punishment, but it does not undercut the deal to the point where you should reject it.
The third element needed in Netanyahu’s taking accountability for his crimes is that he joins in undoing the most damaging aspect of his post-indictment behavior. His false, repeated, demolishing attacks on the police, the state prosecution, the attorney general, the judges and the independent judiciary have damaged the public trust in the whole judicial system. The judicial pillar of democracy that checks political excesses and upholds minority rights must be restored to their full standing with the public. (Not that one plea deal statement can undo all the damage. Still…) Therefore, the plea bargain, or if you prefer the defendant’s accompanying statement of guilt, must include a direct repudiation of his past delegitimizations. This is not to be confused with apologies or reparations to the police and prosecutors whom he besmirched.
Ideally, Netanyahu’s statement should say: In taking responsibility for my crimes in this plea bargain, I acknowledge the falsity of my repeated allegations that the charges against me were fabricated by a biased police force and state prosecution services, overseen by a weak attorney general in league with my political opponents and the leftist media. I also charged that this conspiracy was abetted by a judiciary willing to remove an elected prime minister through a judicial coup. These allegations have been my mantra in recent years. In pleading guilty to specific crimes, I acknowledge that I fabricated this narrative, seeking to escape accountability by delegitimizing the legal system.
Such a declaration is essential to the process of restoring the public trust in the vital bulwark of Israel’s democracy. If you incorporate all three elements, your final actions as attorney-general will have major consequences in strengthening Israel as a democracy with equality before the law and justice for all.
The writer is president of the J.J. Greenberg Institute for the Advancement of Jewish Life and senior scholar in residence at the Hadar Institute of New York and Jerusalem.