Understanding How Bibi's 'Gift Affair' Might Have Happened

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In an interview Prof. Yuval Feldman, discusses his new book "The Law of Good People" and sheds light on the connection between good people and corruption.

Illustration | Flash 90

Putting aside whether Benjamin Netanyahu will be indicted and found guilty of bribery in the “gifts affair” or other affairs or whether he will come out clean, there is no question that Attorney-General Avichai Mandelblit views the prime minister’s actions as having raised troubling questions.

How did Netanyahu end up in this predicament?

Yuval Feldman of the Israel Democracy Institute and Bar-Ilan University explained the issue to The Jerusalem Post as part of a broader phenomenon that to date has blindsided society and law enforcement.

“When it comes to accepting gifts,” he said, “people are less likely to view themselves as corrupt. They are more likely to buy into that they are still good people because it is not a bribe and there is not a clear quid pro quo. The law looks too much for a quid pro quo.”

Continuing and elaborating on his recent publication The Law of Good People, Feldman argued that “the law doesn’t understand how people make decisions. Typically, with a bribe, someone gets money and gets something in return from a public servant. Very few people would engage in such corrupt behavior.”

However, “many more people would do things for someone – write something nice about them in a newspaper, invite them to a conference or give a gift” – especially if they “know them and feel like the person is a friend.”

Besides the “gifts affair,” Netanyahu is being investigated for allegations of two instances of media bribery.

Even “prosecutors have trouble coming after people who they feel are like themselves. After the 2008 global economic crisis, almost no one went to jail. It is very hard for them to go after people they went to business school with,” he asserted.

There are additional layers about why gifts and other gray-area issues are complicated for law enforcement.

Feldman said that “there is not just an ambiguity in the law, but also an ambiguity in reality. You rarely bring a check when you go to your in-laws for dinner. Is a gift a bribe or a present?”

In other words, Feldman is saying that some social interactions inherently have a tendency toward grayer and multiple interpretations. Furthermore, these situations almost as inherently entrap a certain percentage of normative individuals who would not stoop to outright bribery.

He gave, as an example, former Jerusalem mayor Uri Lupolianski, who was convicted, along with Ehud Olmert in the Holyland case, of bribery for moving bribery funds to the medical nonprofit Yad Sarah, and avoided jail time due only to his failing health.

Another social phenomenon that leads to corruption with normative people is where they know some form of low-grade corruption is illegal “but just don’t feel as bad about it, because everyone is doing it.” The most common noncriminal but problematic behaviors that are frequent in society are when many people collectively are speeding or parking their cars illegally, but the same can happen with corruption.

In addition, Feldman is highly critical of conflicts of interest declarations – which have been thought of as an advanced way for states to handle complex social and legal issues.

Under the current approach, in many cases the tactic is “harm reduction. Since we cannot prevent all harms, we ask people to disclose conflicts of interest.”

Admitting that declaring conflicts of interest “prevents some problems and conflicts of interest” situations from going forward, he argued that in many instances, declarations simply free people up and “cause more people to behave in a corrupt way. By allowing people to say, ‘What I am doing is within the law’ and announce their conflict of interest... you make people worse because they think, Now I am free to behave as I want, instead of making them act better,” he said.

In essence, he said that conflicts of interest often mean that there is “disclosure that bad people want to do bad things. And if you look at it from the perspective of good people who might be looking for excuses to promote their self-interest while maintaining an ethical self-image,” declarations of conflict of interest send the message that you can “keep up what you are doing. This makes the situation worse.”

FELDMAN COMPLAINED that the criminal justice system “is so slow, and uses so much money and only gets to the tip of the iceberg” in uncovering corruption. In contrast, he said, his “situational approach can prevent” corruption before it happens.

How does he propose that the law and law enforcement could better cope with these more complex issues?

While he is not totally against penalties for confronting these issues, he said “a behavioral approach” is better and that he would encourage “the law to try to get away from penalties... or a smarter use of penalties.”

“When everything is a criminal law approach,” he said, “it is a very problematic approach to most violations. Regulatory laws prevent gifts to public servants, but that is not enough.”

Regarding a different strategy for penalties, he talked far more about administrative fines and frequency of enforcement than of using jail time and criminal law.

He is convinced that the much broader and corrosive group that law enforcement should go after is the group of people who give money to others in these questionable borderline situations. This is as opposed to the smaller group of people who are trying to get money to put in their own pockets illegally.

“Maybe the penalty does not need to be higher, but enforcement should be stricter. Maybe small penalties issued frequently enough” would work, he said.

Another solution, he said, is “to get people to declare that what they say is true” regarding their financial and political statuses, but altering the burden of proof to be placed on them.

Knowing that their statements can be checked later, that they can get a high penalty for a misleading statement, and that law enforcement will not have the burden of bringing evidence to disprove everything they say, could make people both act more honestly and declare their statuses more honestly, he suggested.

This is another reason Feldman advocates moving away from criminal law, where intent must be proved to a very high standard.

Also, Feldman has opinions about how law enforcement allocates its funds.

“Allocating more enforcement resources” in low-grade corruption situations “versus allocation of all resources for smoking guns,” he said, could alter the current problematic social message that “anything less than taking a bribe to build the Holyland development is okay.”

Finally, Feldman said that local municipal government is set up in an especially problematic manner, and he slammed the proposed bill to let ministers more directly appoint their legal advisers, which the Knesset may soon vote on in final readings.

“Nothing changes to improve local government,” no matter how many mayors are sent to jail, he said. “Too much power is given to one individual. He appoints everyone. The legal advisers law is what happens in local government. It would be like adopting the failures of local government into the central one.”

The interview was first published in the Jerusalem Post