Netanyahu Could Be Sentenced To 10 Years In Prison... But 2 Years Or Less Is More Likely

On Wednesday it became official-- neither Benjamin Netanyahu nor Benny Gantz has been able to form a government. Basically, that means a third election of the year for a politically dysfunctional Israel. And hours after the announcement that Gantz was giving up, Prime Minister Netanyahu was indicted on bribery, fraud and breach of trust charges in a set of long-running corruption cases. He's not legally required to step down. "But," according to the NY Times, "with Israel’s political system already in uncharted territory, having failed to settle upon a new prime minister despite two elections and three attempts at forming a government since April, the criminal case against him could make it far more difficult for him to retain power."

The Jerusalem Post explained that "Attorney-General Avichai Mandelblit announced his final indictment on Thursday against Prime Minister Benjamin Netanyahu, making him the first prime minister in Israeli history to be indicted while still in office. Bezeq and Walla! owner Shaul Elovitch and his wife, Iris, were also indicted for bribery and obstruction of justice. In addition, the owner of Yediot Ahronot, Arnon Nuni Mozes, was indicted for bribery. The indictment decision could alter the course of negotiations over forming a new government and who will be the new prime minister in the current 21 days Knesset process on the issue."

The attorney-general ultimately indicted Netanyahu for bribery in Case 4000, the Bezeq-Walla! Affair, for breach of public trust in Case 1000, the Illegal Gifts Affair and for breach of public trust in Case 2000, the Yediot Ahronot-Yisrael Hayom Affair.

The biggest moving pieces had been what the charge would be in Case 4000 and whether Case 2000 would remain a breach of trust charge as in Mandelblit's initial February announcement, or whether it would be closed.

Ultimately, the decision to indict Netanyahu for bribery is the most decisive one.

It means that his trial will be in a district court, known for being tougher than magistrate's courts and that he could face a potential jail sentence of years instead of months or mere community service.

Moreover, it means that any petition to the High Court of Justice-- which will doubtless soon be filed-- to remove him from power, has a much better chance.

As early as 2017-2018, the Jerusalem Post received multiple indications that an indictment for bribery could bring down Netanyahu even if he did not voluntarily step down, and that this serious consequence was part of what was making the investigatory process take longer.

However, the decision to keep Case 2000 as an indictment for breach of public trust, despite this being the case which Mandelblit was never a fan of, was also significant.

In Case 4000, Netanyahu is accused of involvement in a media bribery scheme in which Walla! owner Shaul Elovitch gave him positive coverage in exchange for Netanyahu making government policies favor Elovitch's Bezeq company to the tune of around NIS 1.8 billion.

In Case 1000, Netanyahu is accused of receiving hundreds of thousands of shekels in gifts from rich tycoons, mostly from Arnon Milchin, in exchange for a variety of help with business and personal-legal initiatives. The charge itself is for acting in situations in which Netantahu had a conflict of interest, since no actual quid pro quo could be proven.

In Case 2000, Netanyahu was accused of working with Yediot and Yisrael Hayom to reduce Yisrael Hayom's competition with Yediot in exchange for positive coverage for Netanyahu in Yediot. The deal never went through, but the law has crimes of attempted bribery and breach of trust which can apply even if a deal does not go through.

Yesterday Haaretz asked what everyone in Israel-- and beyond-- is wondering: Can Netanyahu remain prime minister and thereby get immunity from prosecution? "In the coming weeks and months, the political system will also have to adapt to the new situation. Netanyahu is seeking immunity from indictment. This is a serious issue Israeli lawmakers will have to tackle-- perhaps via legislation... Netanyahu has 30 days to request that the Knesset plenum grant him immunity so that he may avoid criminal trial. He is expected to ask to be granted this immunity, but if he does not do so within the allotted time, the legal proceedings against him will begin."

Right now, there isn't a Knesset body authorized to make this decision.

As long as a discussion isn't held by the House Committee regarding a request by the premier to give him immunity, the indictment against him cannot be filed. Consequently, the court will not be able to start any hearings related to his cases.

The Knesset could decide to appoint a House Committee especially in order to hold a session on Netanyahu's request for immunity. Alternately, the discussion by such a committee could be postponed until a new government is formed. In any case, Netanyahu's request for immunity and any decision to approve it must be justified on the basis of the reasons for immunity as stated by the Israeli law.

The first such reason is that the applicant has substantive immunity, which cannot be revoked. This substantive immunity covers offenses committed while the defendant served as a Knesset member.

The second pretext is the argument that the indictment was not filed in good faith-- i.e., it is tainted by political motivations or by intent to harass, for example. Another pretext is that his actions could be examined by an internal Knesset forum as a disciplinary offense. The fourth reason is that the criminal proceeding could substantially harm the functioning of the Knesset.

Even if the Knesset House Committee and plenum decide to grant Netanyahu immunity, Attorney General Avichai Mendelblit or any other citizen could appeal the decision to the High Court. By the same token, Netanyahu could appeal to the High Court if the Knesset denies his request for immunity.





The High Court has intervened in the past in decisions involving the granting of immunity on the grounds that the Knesset exceeded its authority, that the decision to grant immunity was unreasonable or that that there had been a shortage of evidence to support any of the causes to grant immunity. Any decision by the Knesset regarding immunity for Netanyahu will likely be followed by a petition to the High Court.

...Does Netanyahu have to resign if he is indicted?

This issue has never been decided in court. It would be precedent-setting for an indictment to be filed against a sitting prime minister. Section 18 of Basic Law: The Government stipulates two situations in which a prime minister ought to cease serving in his position in wake of an offense: The first is a decision by a majority of the Knesset after a trial court has convicted him of an offense involving moral turpitude; and the second situation is a conviction that has been confirmed at every appellate level. According to the Basic Law, in both cases, the prime minister’s resignation would occur following a conviction, and not during the indictment stage.

However, a Supreme Court ruling from 1993 could change matters entirely. Twenty-six years ago, the court ruled in what has since become known as the "Dery-Pinchasi precedent" that then-Prime Minister Yitzhak Rabin had to fire Minister Arye Dery and his deputy Rapahel Pinchasi due to a serious indictment against them.

Evoking this ruling, the court could order Netanyahu to resign despite the stipulations dictated by law. The High Court could use the legal interpretation which says that if such a rule applies to ministers, it should certainly be applied to prime ministers.

Another argument to be made is that a prime minister’s decision to remain in office once indicted and in the midst of legal proceedings seriously impacts his ability to do his job on behalf of the public.

Nonetheless, there is a significant difference between a minister and prime minister, as the latter is not appointed but rather elected. Therefore, the Supreme Court cannot say that a certain party’s decision to fire him or refrain from firing him is unreasonable. There is a legal opinion which says that it is up to the prime minister to decide whether to resign or not, and therefore the court may criticize the reasonability of his decision. An interim possibility the High Court has is to compel Netanyahu to declare temporary incapacity.

...What possible sentence may be given for the offenses Netanyahu is charged with?

The maximum sentence for bribery is 10 years in prison. In practice, the court has never imposed the maximum sentence on elected officials who were convicted of bribery. Olmert was sentenced to 19 months in prison for bribery. Former minister Shlomo Benizri was convicted of accepting a bribe and was sentenced to four years in prison. Deri was convicted of bribery, fraud and breach of trust and sentenced to three years in prison. The maximum sentence for offenses of fraud and breach of trust is three years in prison.

One interest Netanyahu will have in trying to delay the legal proceedings concerns his age at the time of sentencing: If by the time a trial concludes Netanyahu is 77, the court will likely take the defendant’s age into consideration when issuing the sentence.