Prime Minister under Investigation – A Guide for the Perplexed
The following guide represents the collective wisdom of the Israel Democracy Institute's scholars and explains the various possibilities and scenarios as Israel enters unchartered political and legal waters
The investigations into the conduct of Prime Minister Benjamin Netanyahu have led to a number of constitutional dilemmas regarding the next steps that should be taken if there is an indictment. Many of the questions that have arisen during these investigations are due to the unprecedented prospect of a sitting prime minister under indictment and the lack of settled law on this matter. No matter the outcome, Israel's political and legal community should seize the moment and contemplate legislation to regulate this matter so the system is ready for possible future reoccurrences of a prime minister under investigation.
The following guide represents the collective wisdom of the Israel Democracy Institute's scholars and explains the various possibilities and scenarios as Israel enters unchartered political and legal waters.
A. If the Attorney-General is able to complete his examination of the cases in a reasonable time period ahead of the elections (several weeks), most legal experts argue that he is obligated to announce his decision because of the public's right to know. They argue that the same considerations that led the police earlier in the process to announce both the launch of the investigation and then its results, should apply to the attorney general's decision Other legal experts are of the opinion that at this point, with elections weeks away, it would be best for the Attorney General to hold off on his decision so as not to provide even a hint of inappropriate influence over the public's vote. Even then a decision announced after the election would be susceptible to the criticism that the AG was seeking to overturn the will of the voters through legal means.
A. Law enforcement agencies must be allowed to work independently and professionally to examine claims that the Prime Minister, or other officials, has committed crimes, and if so, bring to justice those who have broken the law. The public also has the right to know if candidates for a public position may have committed a criminal offense. Publishing precise information is not considered an attempt to "influence the elections." At the same time, law enforcement agencies are obligated to do all they can to avoid influencing political processes, especially in the run-up to elections, and to follow the requirements of due process. They must take this into account when deciding to investigate and publicize their findings. This is why they should avoid announcing their decision at a date too close to the elections.
A. A decision by the AG to indict is not a final decision, and can be altered after a hearing. During the hearing, the accused is provided the opportunity to point out mistakes in the legal analysis, the evidence, or even raise new arguments in his defense.
A. Israeli law obligates a written or in-person hearing before a decision to indict for an infringement of criminal law. In practice, exceptions are also made for elected officials, even if they are accused of less severe crimes. The hearing must take place within 30 days of an announcement to issue an indictment, unless an extension is granted. An in-person hearing usually lasts only one session (although in the case of senior officials, 2-3 hearing sessions are normally held). In practice, when it comes to complex cases on suspicion of breach of trust, it usually takes several months between the announcement to indict and the hearing. According to 2016 data from the prosecutor's office, when an in-person hearing was held, 41% of the cases were eventually closed (49 out of 129 cases). However, it should be noted that when an assisting attorney from the prosecutor's office accompanied the police investigators – as was the case with Prime Minister Netanyahu – then the chances of a case being closed after a hearing were greatly reduced.
A. Since the decision to indict is not final until after the hearing, there is no legal requirement for the Prime Minister to step down if an indictment is issued. However, other considerations, such as public opinion or concern for public trust in the rule of law, may lead a public figure to decide to resign. An additional possibility exists in the Basic Law: The Government, in which the PM may declare that he is temporarily incapable of fulfilling his role, and steps aside for 100 days. However, this does not seem to be a practical option in this case. Based on previous cases, more than 100 days usually pass between the announcement of intent to indict and the final decision by the attorney general following the hearing.
Prime Minister Netanyahu is presumed innocent until proven otherwise, and there is no legal barrier preventing him from either running for office or from being elected.
But there is a political question as well. In the Israeli electoral system, following the parliamentary elections, the presidents choose a member of Knesset he believes most likely to succeed and tasks him with forming the government. There is no legal barrier preventing the President from giving this task to Netanyahu after the elections if he feels that he is best situated to form a government. However, the law does not prevent the President from giving the task to another MK from Netanyahu's list, or to an MK from another party who is recommended by the Knesset factions.
There is no legal precedent requiring a Prime Minister to resign if he is indicted, and there is also no explicit legal requirement forcing him to resign before the all the legal processes have been completed. However, as in similar cases regarding accused ministers while in office, the public may question whether the decision for him to remain in office is a reasonable one under those circumstances. This question will mostly likely be decided upon by the Supreme Court if Netanyahu is reelected, indicted and then refuses to resign.
Nevertheless, IDI's legal experts believe that according to public norms, it is appropriate for any elected official who is indicted of serious crimes to resign from the government after a hearing. Having an indicted suspect at the top of the political pyramid could gravely harm the public's trust in the rule of law. It would also create a serious conflict of interest for the Prime Minister, who is ultimately responsible for the Justice Ministry. Such a situation would also hamper the Prime Minister's ability to manage the affairs of state while simultaneously defending himself in court.
During the recent municipal elections, the Attorney General's office adopted a policy of speeding up examination of mayors and other officials so as to reach a decision of whether or not to indict them (pending a hearing) several weeks before local elections. It seems logical to apply this same policy to the Prime Minister's investigation.
A decision not to issue an indictment against a candidate would remove the cloud of suspicion hanging over him or her, allowing them to run for office unhindered by criminal allegations. A decision that an indictment is necessary may help voters reach an informed decision, taking into account whether the candidate in question is worthy of being elected and the possibility that they may not be able complete their term in office if elected.
A. There should be no place in Israel for personal legislation that protects a specific individual from indictment. Such legislation stands in contradiction to the principles of the rule of law and equality before the law. But even a law that would grant any future prime minister immunity from prosecution for serious crimes that concern his actions as an elected official would cause serious damage to the rule of law. The "French Law," which is often cited as a precedent in Israel, is an exception in the democratic world. It is a law that may be appropriate for a presidential system, but not in a parliamentary one.
Given the controversy surrounding this case, and the enormous stakes involved, it is vital that we learn lessons from this affair and consider amendments to the existing Basic Laws to allow for the speedy and efficient investigation of future elected officials who face credible allegations of criminal wrongdoing. These amendments might also include the establishment of an appropriate system of suspension or resignation during the investigation process.