The Economic Crimes Division Prosecution on Monday announced a shocking decision to declare Shlomo Filber, a former top aide to Prime Minister Benjamin Netanyahu and state’s witness against the prime minister, in violation of his immunity deal.
Accordingly, Filber would be prosecuted, subject to a pre-indictment hearing, according to Prosecutor Yonatan Tadmor, in consultation with the Attorney-General and State Attorney’s Office.
The explosive development could change the entire character of the media bribery and fraud trial against Netanyahu.
The issue has been an open question since March 2022.
In March 2022, the Jerusalem District Court authorized the prosecution to cross-examine Filber as if he were a hostile witness without formally declaring him as such.
State prosecutor Yehudit Tirosh had requested that the court formally declare Filber a hostile witness.
She told the court that he had not cooperated sufficiently with his plea deal. If the court had granted the request completely, Filber could have lost his immunity from jail.
The court’s decision essentially gave the prosecution what it wanted to have stronger legal tools for cornering Filber into sticking to their narrative but keeping him still a step away from the prosecution being able to threaten him with jail time.
On cross-examination, a lawyer can ask leading and aggressive questions whereas under direct standard questioning of a witness, there are significant limits on tactics and phraseology.
Still, the prosecution had reserved the right to try to indict Filber at a later date and send him to jail if they thought he continued to fail to cooperate.
That said, it is unusual to declare a witness in violation of their state’s witness deal around two years after they finished testifying in court.
Doubtless, Filber will seek court intervention and will raise this point to prevent the prosecution from indicting him or from convicting him.
Back in 2022, the very fact of the prosecution asking to declare him a hostile witness said to the court essentially that they believed he was lying to the court in answers he gave that appeared to cover for Netanyahu.
Previous tug-of-war between Filber and Prosecutor
This went beyond the earlier days of hearings with Filber when there was a tug-of-war between Filber and Prosecutor Yehudit Tirosh, but the prosecution tried to more lightly hint to the court that Filber’s statements to police were his most true account.
The specific issue that finally led Tirosh to lose her patience with Filber was when he tried to act like he did little wrong with his back channeling with Bezeq officials behind-the-back of his own Communications Ministry officials in order to help them with the Bezeq-YES merger and other issues.
The Bezeq-YES merger was at the heart of the Case 4000 media bribery charges against Netanyahu.
When Tirosh confronted Filber with his repeated admission to the Police that his back channel with Bezeq was “not proper,” he still tried to awkwardly explain how he only meant that it was vaguely unethical, but not criminal.
At a certain point Tirosh even brought Judge Rivkah Friedman-Feldman openly to her side, showing frustration with Filber not taking a clear stand on what he really meant and whether he thought the back channel was criminal.
Shortly after Tirosh saw Friedman-Feldman’s frustration, she asked to declare Filber a hostile witness.
An audible wave hit the courtroom and all of the defense lawyers jumped up to object, calling the suggested move “dangerous” in terms of overly coercing Filber’s testimony.
The judges called for a recess for all sides to weigh their next moves carefully.
During the recess, Filber moved quickly over to Tirosh seemingly pleading with her to back off and explain himself.
Tirosh, with fury in her eyes, waved him off, seemingly to imply she was sick of his straddling the fence.
It was also possible that Tirosh would hold the issue of the immunity deal over Filber to try to get him to cooperate more with her going forward and that trying to declare him a hostile witness was a final warning.
After Tirosh lost patience with him, Filber even asked the judges if he could withdraw the answers he had given which had angered her.
Filber has already testified that he had extensive back-channeling with Bezeq officials behind the back of his own ministry in 2015, and somewhat in 2016.
Tirosh had asked Filber why he withheld from then deputy attorney-general Dina Zilber that he had this back channel with Bezeq at a point when she was probing if he and Netanyahu were violating conflict of interest principles.
Zilber did not yet know anywhere near the extent of the Netanyahu relationship with his Bezeq and Walla owner Shaul Elovitch.
But Zilber knew enough about them having a friendship that she was probing whether Netanyahu needed to step down as communications minister – which he eventually was forced to do.
For Filber to mislead Zilber and withhold from her information about his back channel with Bezeq could be seen as criminal and part of a Netanyahu-Filber scheme to conceal the media bribery scheme.
However, once Filber repeatedly tried to avoid calling his withholding from Zilber a criminal act before the court, Tirosh decided that his responses, along with other answers he was giving in court contradicting his testimony to police, had gone too far.
Ultimately, it seemed the court decided not to declare Filber a hostile witness when the defense lawyers agreed that the prosecution could question him using cross-examination techniques, as if he was a hostile witness.
This move was not ideal for the defense, but they made it clear to the court that it was preferable over the prosecution and the court going all out in declaring Filber a hostile witness.
The defense explained they want to attack Filber as a hostile witness against Netanyahu and Elovitch and do not want the prosecution to be able to cloud their attacks.
Following this confrontation, Filber was much more cooperative with the direction than Tirosh wanted him to go in, though he still gave some answers that made her uncomfortable.
Also, Filber noted a number of important events and turning points.
He testified about a late night meeting with Netanyahu and a mystery person who was never identified in which Filber gave a survey of the Israeli communications market.
Moreover, he testified about an infamous “wine and cheese” meeting he had with Elovitch when they reached deals on many issues concerning Bezeq.
In addition, Filber testified that even once Tzachi Hanegbi took over as communications minister from Netanyahu, that he still handled Bezeq issues under the cloud of Netanyahu’s orders.
Filber said he did not feel free to act independently until May 2017 when Ayoub Kara replaced Hanegbi.
The Netanyahu case has not been heavy in the news since the current war, but the prosecution’s case is almost concluded, after three years, and soon the defense’s case will start.
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