By Shmuel Rosner
January 14, 2018
Last Monday, Israel Learned That The Son Of Its Prime Minister Is An Embarrassment.
That evening, a recording surfaced of Benjamin Netanyahu’s son Yair partying in strip clubs and making lewd jokes. It produced a scandal. The prime minister was forced to respond, of course, to this affair. No doubt, it was a distraction — and from something important: According to reports, the same night the younger Netanyahu was exposed as an imbecile, the Israeli air force was attacking Syrian military installations, the kind of attack that most likely requires the prime minister’s authorization — and his attention.
The possibility of distraction is the most serious argument used by Israelis who say that it will soon be the time for Mr. Netanyahu to leave office. And the source of that distraction pales in comparison with an unruly, crude son: The prime minister is under investigation for corruption.
“The prime minister of the State of Israel is one of the busiest world leaders,” two scholars recently said in a paper for the Israel Democracy Institute. When he spends time on and preparing for police interrogations, clearly his capacity to give his full attention to the affairs of the state is impaired.”
Mr. Netanyahu’s Likud Party has itself invoked this argument before, when Ehud Olmert, Mr. Netanyahu’s predecessor as prime minister, was in legal trouble. “No place of work — surely not the prime minister’s office — can afford a manager who spends most of his time consulting with his attorneys,” said Gilad Erdan, then a Knesset member who is now minister of public security in the Netanyahu government. If the prime minister cannot properly do his job with a cloud of criminal suspicion hanging above him, then he must leave.
The demand for Mr. Netanyahu to resign is growing louder. But the prime minister is adamant about staying. Moreover, he asserts that the people calling for his resignation are dishonest. They want him out not because they worry about dysfunction but because they oppose his policies.
So Who Gets To Decide Why And When A Prime Minister Must Step Down?
Mr. Netanyahu is implicated in several investigations. He is suspected of illegally receiving gifts; he is suspected of negotiating a deal with a newspaper magnate in exchange for favorable coverage. His closest aides were investigated in connection with a corruption scandal concerning the purchase of submarines from Germany. (The prime minister, who maintains he is innocent, has not been indicted in any of these cases.)
These accusations, Mr. Netanyahu’s opponents say, disqualify him for at least two reasons: A man suspected of crimes should not rule Israel, and, more practically, the country needs a full-time prime minister, not one who spends half his days being questioned by prosecutors and police officers, or consulting with defence lawyers.
The legal case, however, is weaker: The prime minister, like all citizens, is innocent until proved otherwise in court. The law does not say he must step down just because he’s accused; forcing him out could amount to punishment for an innocent man.
This is not the first time Israelis have had to think about this. All of our recent prime ministers faced criminal investigation: Mr. Netanyahu, during his first spell in office in the mid-1990s, followed by Ehud Barak, followed by Ariel Sharon, followed by Ehud Olmert. The fates of these prime ministers were all different. Mr. Barak’s term was too short to be affected by investigations; Mr. Sharon was incapacitated by a stroke before investigations concluded; Mr. Olmert was forced to resign, and then convicted and jailed.
What Will Happen To Mr. Netanyahu? Will He Be Forced Out Because Of His Legal Trouble?
The stories of his predecessors should help provide an answer. These stories include several stages of suspicion and action: First, there is a police investigation. Then, the police pass their findings to the state attorneys, often with a recommendation to indict or not. If the prosecutors decide to indict the prime minister, the case goes to court.
We know from experience that a police recommendation to indict isn’t the final word. In 1997, the police recommended indicting Mr. Netanyahu on charges of trading votes for appointments. He was never indicted. In 2004, Israel’s state attorney recommended that Mr. Sharon be indicted on charges of taking bribes. This also did not happen.
But when a police recommendation is followed by a decision to indict the prime minister, the legal water gets murky.
In a 1993 ruling, Israel’s Supreme Court made it mandatory for a prime minister to suspend a cabinet minister who has been indicted. Some legal scholars say this likewise makes it mandatory for an indicted prime minister to be suspended. But that argument is shaky, as Emanuel Gross, a Haifa University law professor, explained recently in an op-ed essay for Haaretz.
“There is no parallel,” Professor Gross wrote, between a cabinet minister and the prime minister. When a prime minister is forced out, the whole government is dismantled. The law does not allow, Professor Gross writes, “a violation of the voter’s decision only because it was decided to file an indictment against the prime minister.”
For the police, or the attorney general, to have the power to determine when a government should be replaced is problematic. It could even be dangerous. For the Supreme Court to demand a resignation of Israel’s leader over suspicions that were not yet proved in court would be similarly problematic.
Still, the lesson of Mr. Netanyahu’s predecessors is not necessarily that a prime minister has to stay in office until the very end of a legal process. The lesson, as frustrating as it seems, is that the legal experts need to step aside and leave the decision to the politicians.
Charges that involve the prime minister are first a public matter, and only second a legal matter. The public elected the prime minister, so the public — or its representatives — should decide when it is time for him to go. They are entitled to decide to let the legal process run its course. They are also entitled to decide that Mr. Netanyahu must go for a reason other than a purely “legal” one — such as he’s doing a bad job or is hurting their party.
In such case, the politicians must own this decision. If they fire him it is not because he is morally unworthy of the job (he is innocent until proven otherwise), not because he is corrupt (corruption is proved only in court), not because he is legally bound to go (he is not). If they fire him it is because they no longer believe he is the best prime minister for Israel.
Shmuel Rosner is the political editor at The Jewish Journal, a senior fellow at the Jewish People Policy Institute and a contributing opinion writer