Netanyahu’s lawyers: ‘We are surprising them’

Day two of Prime Minister Benjamin Netanyahu’s long-awaited series of pre-indictment hearings before Attorney-General Avichai Mandelblit was set for Thursday at 10:00 a.m., following more than 11 hours of the hearings on Wednesday.

Late Wednesday evening, Netanyahu lawyer Amit Hadad left Mandelblit’s office proclaiming, “we are surprising them” with new legal arguments and perspectives on the facts in dispute which the prosecution did not expect.

These hearings over Case 4000 (the Bezeq-Walla Affair), Case 1000 (the Illegal Gifts Affair) and Case 2000 (the Yediot Aharonot-Israel Hayom Affair) are Netanyahu’s last opportunity to head off a final indictment decision that could determine his political fortunes and the ongoing attempts to form a new coalition. 

Lawyer Yossi Ashkenazi said that Mandelblit “listened intently” to the new arguments the lawyers made in defense of Netanyahu and that regarding many issues there was back and forth between the sides as Mandelblit “gave feedback” to the lawyers.

Both lawyers expressed confidence that all the charges would be dropped, while refusing to answer whether, realistically, their best case scenario was to reduce the charges against Netanyahu.

Earlier in the day, Netanyahu’s lawyers rejected any talk of a plea bargain.

Over the course of the day and into the night, Netanyahu’s battery of lawyers issued a series of statements in his defense, while Mandelblit’s team remained silent.

As he entered the Justice Ministry’s offices early Wednesday, Netanyahu’s lawyer Ram Caspi tried to maneuver to get on the good side of the prosecution in light of some of Netanyahu’s history of publicly attacking some of the lead prosecution officials who recommended his indictment in February.

“I have complete faith not only in the legal establishment in Israel, but also in those who stand at its head – which includes State Attorney Shai Nitzan and Deputy State Attorney Liat Ben Ari,” Caspi said. “I have no doubt that during the hearing, the attorney-general will form his recommendations in a professional and thorough manner while disregarding the background noise, the protests and media pressure. I treat these hearings with the utmost importance.”

On Sunday, Mandelblit’s office issued an update that the pre-indictment hearings would be expanded from two days to four days, including Wednesday and Thursday to hear Case 4000, as well as Sunday and Monday of next week, when Cases 1000 and 2000 will be heard.

The goal of Netanyahu’s legal team is likely not to erase the charges but to convince Mandelblit to water them down.

Presuming that Mandelblit issues a final decision to indict Netanyahu, it is likely that this decision will emerge as negotiations over forming a new government are under way.

This means that those final charges could heavily impact whether Netanyahu, Blue and White party leader Benny Gantz, or a new leader from the Likud who pushes out Netanyahu becomes the next prime minister.

Similarly, the final charges could influence any rotation agreement over who lives at the Prime Minister’s Residence.

If the country goes to a third election within a year, the final charges could end Netanyahu’s political career, possibly even more abruptly, as the Likud may dispatch him so they can run the campaign without a criminal cloud.

These political-legal implications are not the only ones, however.

Reduced charges could move down any future trial from the District Court to the Magistrate’s Court. Anecdotally, the latter is viewed as friendlier to politicians since judges there may seek promotion to the District Court, with politicians’ support.

In contrast, most District Court judges recognize they are unlikely to be promoted to the Supreme Court, and view themselves as having reached their senior post.

Netanyahu’s two main targets in the pre-indictment hearings are to try to convince Mandelblit to drop Case 2000, and to get the charges in Case 4000 reduced from bribery to breach of public trust.

Mandelblit already reduced Case 1000 from a bribery case (as recommended by both the police and the state prosecution team) to the lesser charge of breach of trust. The Jerusalem Post understands it is unlikely he will drop the case entirely.

A bribery charge means the case would be heard in the District Court. Breach of trust would descend to the friendlier Magistrate’s Court.

Thus the key for Netanyahu’s fate may be to get the bribery charge in Case 4000 reduced to breach of trust.

There are several scenarios where Netanyahu may still find himself before the Supreme Court, with the justices having to decide whether to force a sitting prime minister to resign who is under indictment but who has not yet been convicted at trial.

No one knows how the Supreme Court would rule, and the highest legal minds suggest such a decision could go either way.

In fact, the Post learned as early as June 2018 that Mandelblit himself might not have gone forward with any of the cases if not for the Case 4000 bribery charge.

If Netanyahu’s lawyers convince Mandelblit to reduce the bribery charge to breach of trust, this would probably end any realistic probability of the Supreme Court intervening.

The key to whether Netanyahu’s lawyers succeed may be whether they convince Mandelblit that they can pick apart the all-important damning testimony of the prime minister’s former top aide-turned-state’s witness, Shlomo Filber. Filber is expected to be a strong witness, and his freedom is dependent on him pointing the finger at Netanyahu.

This means much of the legal fight next week will be about Netanyahu’s lawyers convincing Mandelblit that they can convince a judge that Filber sold out to save his own skin under undo and improper duress by police investigators who were desperate for a Netanyahu conviction.

But Netanyahu’s lawyers will need to compete with the prosecution’s narrative about Filber.

According to a recent Channel 12 report, Filber confessed to police right after turning state’s witness that it was as if a cloud had been lifted and that he could tell the truth for the first time in years.