Hard Questions, Tough Answers: A Netanyahu plea bargain could be momentous for Israeli political life and the rule of law (January 18, 2022)


Yossi Alpher is an independent security analyst. He is the former director of the Jaffee Center for Strategic Studies at Tel Aviv University, a former senior official with the Mossad, and a former IDF intelligence officer. Views and positions expressed here are those of the writer, and do not necessarily represent APN's views and policy positions.

Q: Former Prime Minister Benjamin Netanyahu is negotiating a plea bargain to avoid jail time on corruption charges. Why is this potentially so momentous? After all, he is already out of power.

A: If the plea bargain negotiations between Netanyahu’s lawyers and Attorney General Avichai Mandelblit reach fruition under conditions the latter is understood to be insisting on, Netanyahu will admit guilt to reduced charges and serve 3-6 months of community service. And he will have to acknowledge a judgement of ‘moral turpitude’ (Hebrew: kalon) for his corrupt deeds regarding suspicious undeclared lavish gifts from billionaires and lucrative regulatory concessions to a web news publisher in return for positive coverage.

The moral turpitude admission will by law remove Netanyahu from politics for seven years, until he is 80. In return, the prosecution will remove the charge of bribery on all counts and leave only breach of trust on two out of three counts, which Netanyahu will admit to.

The upshot, as interpreted by those advocating the plea bargain as a way to end the legal ordeal for all sides and allow Israel to move on more unified, will be both a victory for the very rule of law that Netanyahu has so badly abused and removal of Netanyahu from politics.


Q: And those opposing the plea bargain? What do they argue?

A: Those objecting on the political left protest against the privileged treatment allegedly being awarded to Netanyahu and the damage this inflicts on standards for fighting corruption. He will be ‘rewarded’ for his brutal attacks on the legal establishment and the rule of law, and his adoring public will cynically buy into this delegitimization. He will be all too quickly forgiven: witness the emergence of former PM Ehud Olmert, five years after a term in jail for corruption, as a TV political commentator. Worse, once the charges against him are radically reduced, Netanyahu could be pardoned by President Herzog and return to politics.

On the political right, even Netanyahu supporters object that the entire case against him was and remains a fabrication of the treacherous liberal legal establishment. Didn’t Netanyahu himself constantly argue that “nothing will happen [in this case] because I have done nothing”? Didn’t his ministers, two coalitions ago, stand ostentatiously and obsequiously behind him when, prior to entering the courtroom to hear the charges against him, he publicly dismissed the charges as a witch hunt?

And then there are those at the political center who argue that this is no way to heal the wounds dividing Israeli society--even though they seem to have no good alternative to offer.


Q: Where does retired Supreme Court Chief Justice Aharon Barak enter the picture?

A: It turns out that Netanyahu’s search for a plea bargain began a few months ago with a meeting with Barak, who at age 85 is broadly viewed in legal circles as a symbol of the rule of law. Barak, it emerges, persuaded Netanyahu a few years ago not to advance legislation proposed by none other than Naftali Bennett and Ayelet Shaked from the political right that would enable the Knesset to override High Court decisions on constitutional issues. That decision by Netanyahu earned Barak’s respect, even if Netanyahu’s subsequent attacks on the entire legal establishment disappointed Barak.

One way or another, Barak favors a plea bargain as a means of putting to rest at least a portion of the discord within Israeli society. He is advocating for the deal among the legal establishment, where he enjoys tremendous prestige. It turns out that legal manipulations can make strange bedfellows. While Barak will neither make nor break this plea bargain, the controversy over his readiness to absolve Netanyahu may put a significant dent in his legacy as one of the founding fathers of Israeli jurisprudence.


Q: Attorney General Mandelblit completes his term of office in two weeks. Can a plea bargain be negotiated in so little time? Can this do justice to the charges against Netanyahu?

A: The answer is almost certainly ‘no’ on both counts. It turns out that drafting a plea deal takes time and effort, even assuming essential agreement on both sides to the terms. What Mandelblit does not complete will fall to his replacement, who has not yet been appointed but who could be someone lacking a background in criminal law, and to State Attorney Amit Isman, who will fill in for Mandelblit until a new attorney general takes office. All this could draw out the process for months--even assuming that the sides continue to agree on the basic terms. Unless Mandelblit and Netanyahu surprise us with a quicky deal.

So the coming two weeks until Mandelblit leaves office are critical. And, assuming Netanyahu is sincere in his quest, however late in the day, for a plea deal, his famous hesitancy in making major decisions could cause him to lose out if ultimately no bargain is reached.


Q: Reportedly it was Netanyahu himself who instigated discussion of a plea bargain agreement at this very late date, even though his lawyers, looking at the evidence against him, had advocated it long ago. Is Netanyahu serious or could this be a ruse on his part?

A: Knowing Netanyahu, it is easy to envision him walking away from a plea bargain and arguing that he had gone the extra mile by admitting to doubtful violations of minor laws, only to be betrayed once again by the leftist, elitist legal establishment. This would leave him leader of the Likud with wind in his political sails. It would mean that he and his wife Sara and son Yair, who appear to carry a lot of weight in his decision-making, are convinced that following additional years of litigation he will be exonerated. If Netanyahu succeeds in becoming prime minister again, he could yet try to appoint legal officials who would drop the charges.

Or, if Netanyahu is bluffing, this could end in a far worse decision against him that includes jail time. The bluff could so anger the incoming attorney general that a plea bargain would no longer be on the table. We would have to wait as long as four or five more years for an outcome in court.

Meanwhile, Netanyahu is silent. He is totally neglecting his duties as leader of the opposition. He is not even updating his Likud colleagues on progress in plea bargain negotiations.


Q: If indeed a plea bargain emerges and Netanyahu withdraws from politics, who is likely to replace him at the head of the Likud party? And what effect will this have on the longevity of the current Bennett-Lapid government?

A: There are a half-dozen candidates among the Likud leadership who have declared their readiness to replace Netanyahu if, under terms of a plea bargain, he resigns from the Knesset and the Likud leadership. Polling designed to predict which candidate would lead the Likud to the most votes in a national election places former Jerusalem mayor Nir Barkat on top. This apparently reflects the huge sums spent in recent months by Barkat--a high-tech millionaire--to curry favor with the Likud rank-and-file. None of the candidates, including Barkat, emerges from these polls as popular as Netanyahu.

As to the effect on the current government with its unprecedented left-center-right-Arab Islamist composition, recall the prediction we made back in June 2021 when the Bennett-Lapid coalition took office. We theorized then that it is only shared repugnance at Netanyahu’s corruption and his insistence on continuing to lead the Likud that would hold this coalition together. We ventured that, if and when Netanyahu leaves politics because of his legal woes, the former Likudniks leading the new government would link up with their former home base, the Likud, to form a new right-wing coalition.

That certainly remains a leading scenario. Already the Bennett government’s left wing (Labor, Meretz) is complaining that right-wing ministers are ignoring them. The simple fact is that, with Netanyahu gone, the coalition’s right wing (Yamina, New Hope, Yisrael Beteinu) and even its center (Blue-White, Yesh Atid) have in the Likud an alternative if Labor and Meretz are too demanding, whereas Labor and Meretz have no alternative coalition. One other possibility is a center-right coalition embodying all or part of the Likud and the current coalition’s rightists and centrists, led by either Blue-White’s Gantz or Yesh Atid’s Lapid, both of whom have a claim to the premiership based on prior coalition agreements.

The Arab Islamist Raam, which has negotiated with the Likud in the past, presumably would have no problem joining a new rightist coalition as long as its demands regarding the socio-economic ills of Arab society in Israel are met.

Then too, conceivably the current coalition could survive and merely absorb into its ranks a few Likud members of Knesset who will now feel free to leave Likud ranks. That would have the effect of strengthening the Bennett-Lapid coalition by pushing it well beyond the 61-MK threshold where it currently totters. But at what price for the ministries and influence of Labor and Meretz?

Finally, the current coalition could, by hook or by crook, hold steady. No serving minister likes to leave office. Bennett is enjoying the premiership. . .

One way or another, nothing will happen until the stars align: Netanyahu has to sign a plea deal, the court has to approve, Netanyahu has to resign, and Likud has to choose a new leader. That, at a minimum, will take months. And it may never happen. Further, for those who take the long view, even in the event Netanyahu leaves politics, he could be back, legally, when he’s 80. Lest we forget, his father lived to over 100 and engaged in academic research well into his 90s!