Bibi's Indictment and the Future of Israeli Democracy - by Prof. Avi Bell

The Attorney General’s misguided decision to charge the Prime Minister with bribery and breach of trust may spell trouble for the future of Israeli democracy

Prof. Avi Bell..
Tablet Magazine..
28 February '19..

Israeli Attorney General Avichai Mandelblit’s announcement to the media, 40 days before general elections, that he intends to indict Prime Minister Benjamin Netanyahu on charges of bribery and breach of trust in three different cases was political drama of the highest order. There’s no gainsaying the importance to Israel’s politics and the election. But more importantly, Mandelblit’s announcement heralds a crisis for Israel’s democracy and the public image of its legal system.

Mandelblit’s announcement inserts law enforcement officials into the political arena in an unprecedented way, and on a very shaky legal foundation. If the legal theories that the attorney general is introducing against Netanyahu become general law, a considerable part of the democratic life of Israel will have to pass through police interrogation rooms. If they remain restricted to Netanyahu, the partisanship will permanently damage public trust in the Israeli legal system.

To be sure, Mandelblit’s announcement is only an interim step in the legal drama. Any actual indictment will have to wait for hearings in the attorney general’s office in which Netanyahu’s lawyers will be afforded the opportunity to attempt to dissuade Mandelblit from his chosen course. The hearings will take place after the election, and only in a year or so will Mandelblit be in a position to request that the Knesset lift Netanyahu’s immunity or formally file an indictment. And the political fallout will not end with the opinion polls now being conducted. It is likely that Mandelblit’s announcement will influence not only the number of votes received by the parties on April 9, but the coalition negotiations to follow.

Yet, while the ultimate political fallout remains unclear, the danger in the novel legal theories introduced by Mandelblit is stark. The criminal charges against the prime minister lack legal substance, and they threaten both the rule of law in Israel and the health of its democracy. Professor Alan Dershowitz said as much in several op-eds and an open letter to Mandelblit in recent months, and he is absolutely right.

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Avi Bell is a Professor of Law at Bar Ilan University and the University of San Diego, a Senior Fellow at the Kohelet Policy Forum, and a Visiting Fellow at Harvard Law School’s Project on the Foundations of Private Law.

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