The Netanyahu Probe and the Court of Public Opinion

By David Makovsky

The Washington Institute

February 15, 2018

Binyamin Netanyahu's political future hangs in the balance after police officials recommended to the attorney general on February 13 that he be indicted on two separate cases involving bribery, fraud, and breach of trust. In one case, the prime minister is accused of accepting $280,000 worth of gifts from individuals in return for advancing their interests. In the other, he is accused of taking steps to weaken one newspaper in return for favorable coverage in another.

Within minutes of the move, Netanyahu appeared on national television to dismiss the allegations, stating that the police are biased against him and reminding viewers about his long record of military and government service. In response, critics argued that he was undermining a key law enforcement agency. The speech is a sign that Netanyahu realizes his political fate may rest with the court of public opinion even if his legal fate winds up in the hands of the courts.

POLITICIANS AND POLLS

The various members of Netanyahu's governing coalition, including some of his rivals, must now decide whether to stay or bolt. With politicians keeping a close eye on the polls, how the public internalizes the severity of the allegations could become very relevant. It is unclear whether Israeli opinion on Tuesday's announcement will be swayed by two other pending cases linked to Netanyahu. For now, police say he is not an official target of their probe into the most financially lucrative case, which involves corruption allegations related to his brother-in-law's role as a lawyer in the government's purchase of German submarines worth up to $2.5 billion.

Netanyahu's most prominent colleagues and rivals—including Finance Minister Moshe Kahlon and Education Minister Naftali Bennett—say that they will not take a stand on the matter until Attorney General Avichai Mandelblit decides whether to indict. Such noncommittal statements have fueled speculation that political leaders are waiting to see how the public reacts, though Bennett subsequently chided Netanyahu for taking gifts from American billionaires.

During the author's recent visit to Israel, it was clear that Netanyahu's political associates had been carefully planning for this situation amid widespread anticipation of a negative police recommendation. One top advisor admitted that Kachlon, a vocal proponent of clean government, was the prime minister's wobbliest supporter. Kachlon leads 10 of the 67 members in Netanyahu's coalition, which controls the 120-member parliament by a slim margin. According to the advisor, Kachlon pledged last month that he would not bring down the government based on a police recommendation alone, though he pointedly refused to give assurances about how he would react if Mandelblit leaned toward indictments. His wavering is no small matter given his well-known desire for the government to complete its term, giving him enough time to fulfill his 2015 campaign pledge on lowering the cost of apartments for young families.

LEGAL AND POLITICAL TIMETABLES

Israeli law mandates that Netanyahu would be entitled to a hearing if Mandelblit makes an initial recommendation to charge him in either case; the indictment would not be formalized until after the hearing. The prime minister's political advisor and other close associates believe he would probably be forced to step down if said hearing does not go well. Yet his team is clearly counting on the fact that the entire process could take as long as a year—nearly the same amount of time his government has before finishing its term and facing mandatory elections.

Negative public reaction could speed up the process, however. Yoaz Hendel, a columnist who once worked for Netanyahu, has said that the people will not allow Mandelblit to delay the cases given their heightened interest in the matter.

Public opinion could affect Netanyahu's calculations as well. His February 13 statement suggested he will continue doing his job "faithfully and responsibly," but if his advisors believe the people are largely supportive, he would not rule out preempting potential indictments by calling for early elections as a show of political force to the legal establishment. In their view, the question of whether the alleged $280,000 in gifts actually affected Netanyahu's decisions remains a gray zone, so they are hoping this uncertainty will sway Mandelblit, a former senior aide to the prime minister. Yet this kind of political calculus might be clutching at straws.

One thing is clear: Netanyahu has been the great survivor of Israeli politics, and if he remains in power until next year, he will be the longest-serving leader in the country's history. He may be counting on the widespread perception that he has yet to groom a successor; indeed, he has fallen out with various top officials in recent years, including Gideon Saar and Moshe Yaalon. He seems determined to persevere even if rivals to his right (Bennett) and left (Yair Lapid and Avi Gabbay) pick up points in the polls at his expense.

The size and durability of any point changes will be closely scrutinized by politicians and the public alike. A poll taken immediately after the police recommendation indicated that 48 percent of respondents want Netanyahu to resign, a decrease from the 60 percent tallied in response to a similar question in December. Although Netanyahu may take solace in that decrease, instant polls are often unreliable, and even if the latest one is accurate, 48 percent is a large number.

THE OLMERT PRECEDENT

Netanyahu also appears to be counting on the fact there is no explicit provision for an indicted prime minister to step down. In 1993, Israel's Supreme Court ruled that cabinet ministers have to step down if indicted, but the situation is more complex in the case of a premier, whose departure would presumably trigger the resignation of the entire cabinet.

It should be recalled that when a similar situation arose in 2008—the year Prime Minister Ehud Olmert stepped down amid corruption charges—it was not a legal requirement that forced him out. Rather, it was the strident role played by Defense Minister Ehud Barak, who said that the allegations made it untenable for Olmert to remain in office well before any indictments were issued. So far, no equivalent of Barak has emerged in the current government, though Netanyahu himself strongly condemned Olmert after the police recommended indicting him in 2008, declaring, "He does not have a public or moral mandate to determine such fateful matters for the state of Israel when there is the fear—and I have to say it is real and not without basis—that he will make decisions based on his personal interest in political survival and not based on the national interest."

POLICY IMPACT

In the wake of this week's announcement, observers may question whether Netanyahu's decisions on matters of war and peace will be affected by his personal legal situation. As it turns out, he has been famously risk-averse on such matters throughout his tenure. Since his first round as prime minister in 1996, he has largely avoided using ground troops in battle (with one exception—when he feared Hamas had been tunneling into Israel during the Gaza war of 2014).

In addition, the Israeli parliamentary system differs from the American presidential system in that it gives the security establishment a more prominent role in military decisionmaking. For instance, if the situation in Syria escalates following last weekend's incidents between Israel and Iran, any major decision from Jerusalem would require full involvement of the military and inner cabinet, not just Netanyahu.

As for U.S. policy implications, Netanyahu will no doubt rely even more heavily on his right-wing base to maintain support during this period, which could make him more vulnerable to pressure on issues of concern to them (e.g., unilaterally annexing the West Bank settlement of Maale Adumim). Therefore, the notion of making progress on the Trump administration's moribund peace plan is now even more far-fetched, especially at a time when the Palestinians are boycotting U.S. officials. Regarding Iran policy, Netanyahu will surely continue urging President Trump to either "fix or nix" the nuclear deal, though the actual impact of his exhortations remains uncertain.