BICOM Briefing The Netanyahu investigations: What next after the Attorney General’s announcement? February 2019 Introduction Netanyahu has also said that he will not resign during any indictment process. Israel’s Attorney General (AG) Avichai Mandel- Several stages exist following Mandelblit’s ini- blit will soon announce his decision whether or tial announcement on whether he recommends not to indict Prime Minister Benjamin Netanya- indicting Netanyahu (Stage 1). hu – pending a hearing – in three separate cor- ruption cases. Netanyahu has said that he will It is not known how the AG’s initial decision, dur- not resign and he is not legally required to do so. ing an election campaign, will affect Netanyahu’s But with elections on 9 April, the AG’s decision Likud Party’s standing in the polls. The party is has huge political significance. This briefing currently predicted to win approximately 30 seats examines the corruption cases, maps out the and all the polls suggest Netanyahu is best placed different stages of the legal and political pro- to form a coalition after the elections. Moreover, cesses, and analyses potential future scenarios. Netanyahu could even utilise the announcement It represents an update of a BICOM briefing The to brand himself a victim of media and judicial Netanyahu investigations: details, process and elites which may even improve his popularity. At possibilities published in February 2018 when the same time, the announcement will almost cer- the Israeli police published their recommenda- tainly cause serious embarrassment to Netanyahu tion that the Prime Minister be indicted. – especially once detailed evidence and testimony is inevitably leaked to the media. Stage 1. Stage 2. Stage 3. Stage 4. Stage 5. AG decision Pre-trial AG final District Court Supreme to indict hearing decision trial & ruling Court Appeal 3-9 months 3 weeks - 4 months 3-7 months 6-12 months Background The party-political context to the AG’s decision In February 2018, after a 16-month investigation, the Israeli Police recommended that Prime Minis- The AG’s announcement will cause all the major ter Netanyahu be charged with bribery, fraud and political parties, including Netanyahu’s potential breach of trust in two corruption cases known coalition partners, to clarify their position on as “Case 1000” and “Case 2000”. In December whether they would serve in a future Netanyahu 2018, the police further recommended indicting government. Although some party leaders have Netanyahu for bribery, fraud and breach of trust in been explicit that they would not serve with him “Case 4000.” Since those recommendations, the if he is indicted, others have been deliberate- Attorney General has been reviewing the evidence ly ambiguous as to whether this relates to an to decide on his own recommendations. Netan- announcement by the AG of indictment proceed- yahu is considered innocent until proven guilty ings pending a hearing (Stage 1), after a final and he has maintained his innocence throughout, decision to indict (Stage 3), or after a verdict from consistently stating that “there will be nothing the Court (end of Stage 4 & Stage 5). This ambi- because there was nothing” while arguing that guity is particularly significant because the April the left wing and media has been putting undue elections and subsequent coalition building will pressure on the AG to charge him. “They’re trying take place between stages 1 and 3. to force the Attorney General to brazenly inter- vene in the elections by ordering me to a hearing, The Labour Party led by Avi Gabbay have said despite knowing that it won’t be possible to con- they will not join a Netanyahu led coalition clude the hearing process by election day”. under any circumstances. But Netanyahu’s current coalition partners have been more cir- 1 cumspect. In December 2018, Justice Minister State Prosecution then arranges a time for a Ayelet Shaked, one of the leaders of the New hearing with the PM’s defence team. The pros- Right party, which is considered a natural coali- ecution will likely push for an earlier date, with tion ally for Netanyahu, said: “My opinion re- the defence arguing a longer period is needed to mains that, certainly until a final decision by the allow the latter to properly prepare. Attorney General after a hearing, we don’t have to do anything … by law, the Prime Minister can The legal ramifications: There is no legal im- remain until he is convicted with a final verdict. pediment to Netanyahu running in the elections Rationality dictates that the decision of one per- as Likud leader and attempting to form the next son, the Attorney General, cannot bring down a government. government.” The political ramifications: Then-Prime Min- In October 2018, Moshe Kahlon, leader of the ister Ehud Olmert was forced to resign by his centrist Kulanu Party and part of the current coa- coalition partners months before this stage (even lition, said that Netanyahu could not continue to before police recommendations were completed). lead the country if he were to be indicted in the Political pressure – primarily from opposition corruption investigations. Kahlon’s support for parties – will be exerted on Netanyahu to re- Netanyahu is key because the polls consistently sign, especially if some of the charges include predict that it would be impossible for Netanya- bribery, but Netanyahu’s coalition allies will be hu to build a 61-member coalition without Ku- supportive and Likud’s support base will likely lanu’s support. However, Kahlon recently back- rally around their leader. The AG’s decision will tracked and said he would be willing to serve in force all the major parties to clarify their position a Netanyahu government, even if he were to be on whether they would serve in a coalition with indicted by the Attorney General. Netanyahu after the elections. The newly merged Blue and White party is also The political ramifications part 2: Israeli yet to fully clarify its position. In January, Yesh Elections: Elections will be held on 9 April, in a Atid leader Yair Lapid told Hadashot News that period between the AG’s initial announcement he would not join a Netanyahu-led government and a hearing taking place. According to Israeli if the AG announces an intention to indict the law, the President is tasked with asking the MK Prime Minister, even before the hearing process most likely to be able to form a coalition of 61 has been completed, and it is believed this posi- seats or more to form a government. Usually this tion will ultimately be adopted by the Blue and is the leader of the largest political party, but in White Party. On 26 February, Lapid took to twit- theory it can be any MK from any party. The law ter to say the Blue and White Party would only also allows for 61 Knesset members to sign a let- form a National Unity Government with Labour ter to the President asking him to confer the job and Likud, if Netanyahu had left the party. of forming a government on a specific Knesset member. Each MK has four to six weeks from the The Netanyahu investigations: What time requested by the President to try and form a government. In light of this, one of two scenarios happens next? could occur: Netanyahu’s future will be determined by two Scenario 1: Netanyahu is asked to form the next separate but parallel tracks: the legal process government and succeeds in convincing enough focused on the AG decision over an indictment party leaders to join his coalition, despite the and subsequent trials; and the political process AG’s announcement, and continues to serve as which relates both to the election results and Prime Minister. The rest of this briefing is based how politicians will respond to the various legal on this scenario, which is considered the most stages and subsequent developments. likely one. Stage 1: The AG announces his Scenario 2: Netanyahu either fails – or is not decision to indict the Prime Minister, asked – to form the next government due to a pending a hearing lack of support from other party leaders. In this scenario, the President would likely evaluate What happens: The Attorney General will whether the leader with the next best chances announce a decision whether to indict Prime – at this stage Benny Gantz – would succeed in Minister Netanyahu pending a hearing. The forming a governing coalition. In the event that 2 neither Netanyahu nor Gantz can form a 61-seat legally obliged to resign. NGOs may petition the majority government, the President could the- Supreme Court arguing that Netanyahu should oretically ask a different Likud MK to try and be forced to resign. There is legal uncertainty form a government. However, for this to happen, over whether the so called ‘Deri-Pinhasi Prece- the Likud party via its Central Committee would dent’ – a ruling which forces a Minister against have to force Netanyahu to resign as leader after whom the AG has filed an indictment to be re- which there would be a leadership contest within moved from office if he does not resign – applies the Likud (a ballot of all their members), which to the Prime Minister, and the Supreme Court is would take several weeks. unlikely to intervene at this stage. Stage 2: The hearing Within 30 days of the AG handing down a fi- nal indictment verdict, Netanyahu has the legal What happens? The State Prosecution meet option to ask the Knesset to vote to grant him with Netanyahu’s defence team privately to re- immunity. Under the ‘Knesset Members Immu- view the case. The private hearing – which can nity, Rights and Duties Law’ of 1951, Netanyahu include several meetings – is based on Israel’s would need the support of the Knesset ‘House Criminal Procedure Law which states that ‘the Committee’ (on which the governing coalition suspect will be entitled to apply in writing to the has a majority) and the majority of Knesset mem- prosecution authority… and to make a reasoned bers.