The eminent late Israeli defense attorney Adv. Jacob Weinroth once said that he could never be a judge, because he was capable of writing a guilty verdict in the morning and writing an acquittal verdict the same evening in which he would convince himself that the opinion he wrote in the morning was completely wrong. Criminal law, especially when white collar crimes are involved, and certainly in cases with circumstantial evidence, is a competition between plausible narratives: between the stories of the prosecution and the defense.
The lawyers defending Prime Minister Benjamin Netanyahu are presenting themselves today at a hearing before Attorney General Avichai Mandelblit, in which they will have to rebuff the damning version of events told by the State Attorney's Office and the Attorney General in cases 1000, 2000, and 4000. This version portrays Netanyahu as fundamentally corrupt - a leader who cooked up dark plots with tycoon associates designed to aggrandize his name and that of his family, in which he did not hesitate to misuse his public position.
The narrative in the provisional indictment is based on abundant evidence obtained in the strenuous and comprehensive investigation conducted by Israel Police and the Israel Securities Authority. At the same, in a world in which a reasonable doubt about the accused's guilt is enough to acquit him, the defense lawyers' task is not to persuade the Attorney General that the suspicions are a fairy tale. It is enough for them to tear important holes in the general picture portrayed in the provisional indictment.
Since the cases are based on circumstantial evidence of the suspects' alleged guilt, the main tactic of Netanyahu's lawyers will not be to bring new and unexpected findings (there are none), but to try to convince the Attorney General that the interpretation that he gave every bit of evidence making up the jigsaw puzzle of guilt is not the only possible one.
In each of the three cases, Netanyahu's lawyers will attempt to create an overall framework story different from the one described in the provisional indictment. I will call the main framework story that Netanyahu's lawyers will use in the 4000 case the "boasting story." The main framework story that Netanyahu's lawyers are likely to use in the 2000 case is the "bluffing story." The main framework story that Netanyahu's lawyers will use to try to persuade the Attorney General in the 1000 case is the "bullshitting story."
Correspondence revealing give and take relations mere boasting?
Case 4000, in which it was decided to try Netanyahu for taking a bribe from Shaul Elovitz, owner of the Bezeq telecom group and the Walla! website, is the most severe of the three cases. The behavior of Netanyahu and Elovitz revealed in the investigation is at a minimum repulsive. For the Attorney General, the main difficulty in this case is proving the causal connection between the regulatory decision involving Bezeq and the biased coverage on the Walla! news website in favor of Netanyahu and his family, and Netanyahu's criminal intent.
The State Attorney's Office solves this problem, among other things, through objective real-time evidence proving the alleged criminal intent of Netanyahu and Elovitz to conduct corrupt give and take relations - give biased coverage in my favor and take regulatory favors for Bezeq.
For example, the State Attorney's Office bases the bribery story on messages and conversations showing that Elovitz took great pains to give Netanyahu biased coverage, so that the prime minister would take care of his business interests in exchange. "What angers me in this story is that the 'big guy' (Netanyahu) is jumping through hoops to help, and we can't reward him because of bunch of nobodies," Elovitz wrote to former Walla! CEO Ilan Yeshua in one of the events.
In his answer to Elovitz, Yeshua wrote, "When you boil it down, we're delivering the goods, but we can do better." Elovitz was unappeased, writing to Yeshua that the "'big' is giving me good surprises every day in the most important things, and we have to find a way to reward him… He deserves it, and much more can be done. I don't like to be in someone's debt; he's really OK, and is changing the entire old legacy."
This correspondence seemingly shows a give and take relationship between Netanyahu and Elovitz, as stated in the provision indictment. Netanyahu's lawyers, however, will argue in the hearing that these and other statements by Elovitz were more boasting to his subordinates about his closeness to the prime minister. Netanyahu's lawyers will argue that there is no proof that Netanyahu was aware of what Elovitz was saying, or that he had any criminal intent of accepting a quid pro quo in the form of biased coverage in his actions concerning Bezeq. The main effort by Netanyahu's lawyers will be to disconnect these two lanes: the biased coverage lane and the decisions about Bezeq lane, and to claim that there is no connection between them.
Netanyahu - Bluffing the publisher
While the lawyers will say that Elovitz was boasting to his subordinates, in Case 2000, they will argue that Netanyahu himself bluffed "Yedioth Ahronoth" publisher Arnon Mozes in the meetings between them. According to the provisional indictment, Netanyahu committed breach of trust after Mozes offered him a bribe in the form of biased coverage in his favor. "Netanyahu did not cut short the conversation with him; he held a detailed discussion on the elements of the proposal."
Netanyahu's lawyers will claim throughout that following the alleged offer of a bribe by Mozes, Netanyahu continued to mislead the publisher, and never intended to act in the direction allegedly indicated by the conversations between them. The provisional indictment states that Netanyahu also took actions as part of a demonstration of the possibility that he would use his governmental power and public position to promote legislation benefiting Mozes according to the bribery proposal.
The lawyers will claim that even if such actions were taken, they were designed to mislead Mozes. The arguments by Netanyahu's lawyers in Case 2000, like those raised by the lawyer representing Mozes, who is suspected of offering a bribe, will fall on especially response ears - the Attorney General was very hesitant about filing an indictment in Case 2000. I think that the probability the Mandelbllit will close Case 2000 is much higher than the probability that either of the other two cases will be closed.
Breach of trust because of gifts? Nonsense
Case 1000, in which Netanyahu is suspected of breach of trust for receiving gifts worth hundreds of thousands of shekels from Arnon Milchan "related to his position as prime minister" is the case in which Netanyahu's lawyers have almost nothing to argue at the hearing. Case 1000 seems like a closed case of breach of trust, because once Netanyahu treated Milchan as his closest friend (in order to escape the indictment for bribery), it will be very difficult for the lawyers to explain why Netanyahu dealt as part of his public position with issues that affected Milchan and allegedly acted on his behalf.
The main story that Netanyahu's lawyers will use to try to persuade the State Attorney's Office is the "Bullshitting story." The lawyers will argue that this is all nonsense, that Netanyahu never exploited his public position to gain benefits for Milchan, that every decision taken by Netanyahu, even if it may have affected Milchan, was for the general public good. They will allege that the State Attorney's Office is persecuting Netanyahu by attributing criminal intent to him, when he was only trying to promote the public's interest.
Even today, on the eve of the hearing, we are far from knowing the end of the story Netanyahu's investigations. There is no doubt that even after the legal proceedings have ended, each of the sides will adhere to its narrative and tell the public a different story. The story that will determine Netanyahu's fate, however, is the story that the legal system tells.
Presumption of innocence: We emphasize that even after the filing of an indictment subject to a hearing, Benjamin Netanyahu, Arnon Mozes, and Shaul and Iris Elovitz are only suspects. They have been convicted of no crime, and are entitled to a presumption of innocence.
Published by Globes, Israel business news - en.globes.co.il - on October 2, 2019
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