Israel's top prosecutor was already facing the most consequential decision of his career: whether to indict the prime minister. Then the suspect, Benjamin Netanyahu, called new elections. So now Attorney General Avichai Mandelblit has a doubly consequential choice to make: Should he announce whether he'll indict Netanyahu—and on what charges—before the nation votes in April?
In his handling of the drawn-out investigation of Netanyahu in three separate bribery cases, Mandelblit has made his name a synonym for dithering. So he sought advice, or at least moral support. In a side room during a legal conference, the AG met with an ad hoc council of sages of criminal justice—his retired predecessors, several of whom were also retired Supreme Court justices, all the way back to 93-year-old Meir Shamgar, who was chief justice for 13 years.
Someone, it seems, leaked the verdict of the closed-door proceedings: Mandelblit said, “Publicizing the decision before the election is our duty to the voters.”
Many idiosyncrasies of the Israeli system affect this decision. But the big question of what a prosecutor should tell the public before an election isn't unique to Israel. Let me take you through the particulars; you draw the parallels—or the differences from cases elsewhere in the world—as you like.
Predictably, Netanyahu and cronies are furious. David Amsalem, chair of the ruling coalition in parliament and one of Netanyahu's chief enforcers, said that “the attorney general shouldn't interfere in any way” in the election, and that Mandelblit's comments were part of a “coup attempt by the police and prosecution.” A somewhat more sane statement came from the prime minister's legal team. Starting the legal process before the election would mean that the public would hear only one side of the story, which would constitute “serious harm to the democratic process.”
To reword this, Netanyahu's lawyers are arguing that by creating a presumption of guilt on the eve of elections, the prosecution would be acting politically. It would be going outside of the legitimate boundaries of the justice system. At first glance, this is an appealing argument.
Let's go beyond first glance.
For several reasons, Mandelblit is inextricably mixed up in politics, whatever he does. Claiming otherwise is disingenuous. To start, he's part of the executive branch. Officially, the Israeli attorney general is a professional rather than political post. There's an appointment committee that screens candidates, to reduce political interference. Unofficially, Mandelblit's previous position was Netanyahu's cabinet secretary, a strictly political appointment. He was Netanyahu's choice for attorney general. Inevitably, and justifiably, this has led to questions about whether Mandelblit has delayed a reckoning to protect his former patron—or less nefariously, has delayed because the whole situation is painful.
The decision is inescapably political for another reason. In principle, the same measure of power of the evidence should apply in a decision to indict anyone, whether it's the prime minister or a panhandler. But indicting the prime minister even in normal circumstances—when an election isn't already scheduled—would be very likely to lead to the government falling. It would transform the country politically. If, after that, the prosecution failed to get a conviction, it would suffer a high price in public legitimacy. The very least nefarious explanation for how long the Netanyahu investigations have dragged on is that police, prosecutors and Mandelblit himself want an utterly airtight case.
Besides all this, all three cases involve allegations that Netanyahu sought to use power to manipulate media coverage of himself, with the obvious goal of staying in power. If true, this is worse than quotidian corruption, which involves exploiting the system for personal gain. Allegedly, Netanyahu sought to corrupt the democratic process itself by falsifying the information available to voters. Now he claims that giving the public accurate information on the state of the case against him is anti-democratic.
Here we come to the heart of the matter. Voters have the right to know if Mandelblit believes there is a strong case against Netanyahu. Moreover, if he chooses not to indict, voters deserve a very careful and detailed explanation of why he decided this—lest it appear that the attorney general acted for ulterior reasons.
Announcing the decision will have political impact. Yet to postpone telling the public until after the election that there's a very solid case against the man running for reelection would be a far more egregious act of interfering in the political process.
About that presumption of innocence: It's true, if Netanyahu is indicted, we don't know if he'll be convicted. But we do know that if manages to keep a coalition together and stay in office despite the indictment, he'll be greatly distracted. His day job will be defendant; as prime minister he'll be moonlighting. This alone should be a weighty consideration for every voter.
Finally—and this is a particularly Israeli factor—Netanyahu can't claim that if he loses the election but wins in court, his career will be unjustly cut short. In Israeli lives, there are second acts. Yitzhak Rabin dropped out of a reelection race in 1977 because of a minor charge against his wife (not against him) and returned to the prime minister's office years later. Netanyahu himself lost his bid for reelection in 1999 and made a comeback. Today he's not yet 70. A mere youth. His father lived to 102. If he's defeated in an election but victorious in court, alas, we'll likely hear from him again.
Lest anyone develop false hopes, I can't say what will happen in the election if Netanyahu is indicted. He certainly doesn't plan to quit. He'll build a campaign on how the leftists in the prosecution and police—including his ex-crony Mandelblit—are persecuting him. And if voters flee the Likud, they may flee to another rightwing party. In the chaotic state of Israeli politics, with old parties splitting and new ones being born nightly, predictions are foolish.
This much, though, is clear: Mandelblit should carry through on what he said in that meeting of legal sages. He indeed has a duty to the public to reveal, not conceal, the state of the cases against Netanyahu.