Scorched-earth defense
What will Netanyahu’s defense lawyers argue when his trial resumes next week?
One of the big unknowns about what Prime Minister Benjamin Netanyahu’s lawyers will argue at trial is that we still cannot be certain who those lawyers are. The trial is set to restart on Sunday – assuming the coronavirus does not interrupt it.
Lawyer Amit Hadad has been with Netanyahu since the start and is expected to remain the junior lawyer of the prime minister’s team and major public spokesman until the end.
But, in a blow to Netanyahu, Micha Fettman, who represented the prime minister at the first trial hearing on May 24, and became his new lead lawyer only a few months ago, quit over payment issues.
Since his longtime lawyer Jacob Weinroth died in 2018, Netanyahu has hired and dismissed Jacques Chen, Navot Tel Zur, Yossi Ashkenazi, Ram Caspi and now Fettman.
Last Friday, Netanyahu hired Yossi Segev to join Hadad and mentioned possibly also bringing on Boaz Ben Zur.
So, amid this confusion, it is far from clear who will take the lead for Netanyahu when his trial is renewed on Sunday.
Nonetheless, the narrative that his team is set to lay out is quite clear. The Jerusalem Post has been following years of public statements and appearances by Netanyahu and his lawyers, reviewed extensive documents and conducted off-the-record conversations and interviews with a wide range of sources, to provide the following overview.
THE BIGGEST case Bezeq-Walla Affair.
The Post understands that Netanyahu will attack practically every point of the indictment head-on, starting with the case’s key state’s witnesses and former top aides to the prime minister Shlomo Filber and Nir Hefetz.
In this affair, the prosecution has alleged that Netanyahu influenced government telecommunication policy to help Shaul Elovitch, who owned Bezeq (a policy that reaped NIS 1.8 billion in value for Elovitch), in exchange for positive coverage by the media outlet Walla, also owned by Elovitch.
The following is a play-by-play of the major claims and counterclaims in Case 4000, with a focus on Netanyahu’s narrative:
1. The February 2017 indictment of former Ashkelon mayor Itamar Shimoni for “media bribery” prevents Netanyahu from claiming he is being unfairly indicted for a new kind of bribery charge never used before.
The Shimoni case is far more extreme in that it was alleged that Shimoni made a concrete payment for positive coverage. This should not impact Netanyahu regarding whom the accusation is a complex series of policy moves in exchange for positive coverage, but no cold hard cash. In any event, Shimoni himself was acquitted on the bribery charge. This means that as Netanyahu goes to trial, no one has ever been convicted of the crime of media bribery before, and he would be (unfairly) the first.
2. No apolitical bureaucrats approved a key merger between BezeqYes at the center of the media bribery allegations without having their arms twisted by Netanyahu – or Filber acting on his behalf.
Top bureaucrats who
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is Case 4000, the
CASE 4000
signed off on the deal, Yifat Ben Chai Segev and Dana Neufeld, have publicly declared they were not pressured.
3. Filber, as a witness, will torpedo Netanyahu. This is because he had nothing to gain, and received nothing, from helping Bezeq owner Shaul Elovitch get rich from merging with Yes other than following the prime minister’s orders as part of a bribery scheme. Hefetz plus Filber are an unbeatable one-two punch.
True, Filber accuses Netanyahu of giving him directives regarding his treatment of Bezeq and brought documents to Elovitch in August 2015 related to coverage of Netanyahu by Elovitch’s outlet, Walla. But Filber never went so far as to say that he was acting as part of a scheme to influence Walla’s coverage of the prime minister. He only discussed the communications policy side of things.
Moreover, Filber may not have gotten a benefit from Elovitch for helping Bezeq in real time. However, he may have been counting on a high-paying job with Bezeq after leaving government service – as often occurs.
Hefetz’s narrative is riddled with inconsistencies, and he was extorted by the police to turn on Netanyahu by threats to expose him for unrelated noncriminal embarrassing scandals.
4. There are years of articles and hundreds of text messages from Netanyahu messengers Hefetz, Zeev Rubinstein and Sara Netanyahu to Elovitch, and between Elovitch and Walla CEO Ilan Yeshua to tilt Walla coverage toward the prime minister. These will drown the prime minister in proof by the sheer volume of the bribery scheme’s activities. Netanyahu’s messengers mention him too frequently for him to plead ignorance.
There were around one thousand negative articles about the prime minister on Walla. Coverage was especially negative leading up to elections. Articles accused Netanyahu of ruining relations with the US, mismanaging the economy and many other errors. This record will blast a gaping hole in the allegation that Walla swung to his side in some kind of unnatural way.
Alternatively, Netanyahu can argue that maybe the massive campaign by his aides to get positive coverage from Walla was occasionally successful. Yet, a comprehensive review of all articles shows negative coverage. This quashes the idea that Netanyahu would feel indebted to help Elovitch with anything. References to Netanyahu by his messengers were bluffs they used to try to convince Walla editors to play ball with their narrative. None of this means there is any proof that the prime minister himself knew what they were saying on his behalf.
5. Netanyahu concealed conflicts of interest he might have had as communications minister in 2015 and 2016 on at least three different occasions. He concealed from the state comptroller, then the attorney-general and then his own legal adviser, Shlomit Barnea Farago, the extensive close relations he, his wife and his aides had with Elovitch regarding Bezeq and Walla.
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These close relations included joint actions on a daily basis to influence Walla coverage to help Netanyahu. They went far beyond standard politicians’ campaigns to obtain positive coverage.
There are different interpretations about what kinds of potential conflicts of interest must be revealed. A specific authoritative government report on what needs to be disclosed in terms of friendship-level connections interprets the issue narrowly.
According to that report’s narrow definition, Netanyahu had no obligation to reveal the ties with Elovitch about media interactions which many politicians have with most media organizations. Despite any extensive investment by Netanyahu aides, he can deny he knew about most or all of their efforts. If there are snippets where Netanyahu cannot deny such knowledge, he can fall back on the argument that, broadly speaking, the coverage was still negative and so his ties did not require disclosure.
DEFENSE: CASE 1000 The Illegal Gifts Affair
Netanyahu is accused of receiving around NIS 1 million in illegal gifts of expensive champagne and cigars, mostly from tycoon Arnon Milchan.
1. Are we talking about gifts or illegal benefits?
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It will demand to toss the term “gifts” out of the discussion. It will insist on using only the term “illegal benefits,” a synonym tied much more closely to a legal framework of bribery.
Netanyahu will insist on using the term “gifts.” You can debate whether gifts are legal or illegal, but they imply that the underlying relevant legal framework is one of friendship.
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This is an important fight, as the court will need to decide conceptually whether the Milchan-Netanyahu relationship was one of friends, of bribery or of some kind of a mix in different time periods.
2. When does Netanyahu and Milchan’s history start?
PROSECUTION:
The focus will be on 2007-2016. The vast majority of this time, Netanyahu was prime minister or at least knocking on the prime minister’s door. The prosecution will emphasize the totals staggering NIS 1m. in illegal benefits from Milchan and eventually also tycoon James Packer.
DEFENSE:
Netanyahu will start the history earlier. The defense will say that Netanyahu and Milchan’s friendship and gifts go back 20 years. This includes an extended period when Netanyahu was out of politics, was a lower minister nowhere near the throne, and when he headed a crushed opposition. They will say that looking at the full 20-year period when Netanyahu was not premier proves their friendship argument.
3. What are the dominant characteristics of the Netanyahu-Milchan relationship?
Netanyahu will emphasize the long-standing friendship and that Netanyahu sometimes gave Milchan gifts. The defense will be pressed about statements by Milchan and his secretary to police that even though part of the gift-giving started as friends, at some point it evolved to being involuntary.
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The state will jump on Milchan’s admission and say that if the illegal benefits giver admits they were friends, but also admits that it evolved to involuntary gifts, he has extra credibility in accusing Netanyahu and must be believed. Also, the constancy of the gifts and the many intermediaries work to the prosecution’s advantage in terms of narrative.
Netanyahu will respond that even Milchan never said that he was giving the gifts to receive something in return. The defense will respond that it does not matter if Milchan changed his intent about why he was giving the gifts after so many years. Rather, if Netanyahu is the defendant and he still believed the gifts were being given in the context of friendship, it is his intent that matters.
4. More on Case 1000 – from prior interview with Netanyahu lawyer Amit Hadad
When Netanyahu’s former top aide Ari Harow turned state’s witness in 2017, many declared the prime minister’s career over.
Hadad responded, “When I think about what I know about... I do not worry, because the prime minister never committed any corruption-related offenses... this is assuming this state witness will not lie as other state witnesses have .... So the reality as we see it has not changed.”
Responding to Hadad’s comments, Harow’s lawyer Roy Blecher told the Post at the time, “I’m certain that in the future, when all of the details and facts concerning the matter will be revealed, no doubt will remain regarding Ari’s dedication to Israel and to those he worked for in the public sphere.”
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Harow is prevented from fully providing his side of the story pending the legal proceedings he is involved in. But, unlike Filber and Hefetz, he is known to have ultimately avoided making any direct accusations against Netanyahu.
Hadad walked a tightrope in discussing Harow. He said that, from the Netanyahu family perspective, he was “without doubt a real member of the family and beloved,” though adding: “the fact he decided to do what he did is difficult.”
Regarding the prime minister’s broader position on the case, Hadad said that essentially Case 1000 comes down to the prime minister receiving “presents and cigars from [billionaire Arnon] Milchan.”
The state alleges that Milchan and others gave Netanyahu gifts for certain gains, such as possibly help with getting a US visa, major tax breaks or helping smooth over major business deals. In one incident Netanyahu is accused of using an IDF helicopter to transport Milchan for a business deal.
The indictment says that at some point
Milchan wanted to stop giving Netanyahu gifts and was pressured into continuing to do so.
But Hadad asserted, “When you try to categorize” what kind of theoretical legal violation might apply, “you quickly see that the Gifts Law is not relevant, because it applies only to gifts given to a public servant in his capacity as a public servant.”
Citing two proofs, the lawyer contended that Netanyahu and Milchan had “an exceptional friendship and were like brothers,” and that any gifts were given in that context.
He said that one proof was that immediately after Netanyahu was elected prime minister in 2009, the second thing he did was write a letter to Milchan, which Milchan framed for display in his salon at his house.
CASE 2000
The Yediot Aharonot-Israel Hayom Affair PROSECUTION:
1. The indictment alleges that Netanyahu engaged Yediot Ahronot owner Arnon “Noni” Mozes in negotiations about a scheme in which Yediot would give the prime minister better coverage if he pressed close ally Israel Hayom owner Sheldon Adelson to reduce aspects of its competition with Mozes’s paper. Further, the recordings of Netanyahu negotiating with Mozes could be devastating.
Regarding Case 2000, Hadad said rebutting allegations leaked to the media are simple.
He said that it makes no sense that Netanyahu would really cut a deal with Mozes when the sides had been in a public relations war with each other. He said that rather than weakening Israel Hayom, Netanyahu had done everything he could to protect Israel Hayom from other politicians who had tried to attack it.
He pointed out that many have claimed that Netanyahu even dissolved the Knesset and called the 2015 elections to block an anti-Israel Hayom law. If Netanyahu had wanted such a law to cut a deal with Mozes, he could easily have passed after the 2015 elections – but did not, said Hadad.
2. The state has countered that Netanyahu still committed fraud and breach of trust by discussing such a scheme with Mozes, leading Mozes to believe that they might have a deal and order others to carry out actions that could make such a deal happen. Even Netanyahu ally Adelson has given damaging testimony about Netanyahu’s actions here.
Netanyahu has responded that he felt Mozes was using extortion against him and his family, and that his only way to mitigate the harm was to play the game.
Despite the recordings’ dramatic value, a big problem for the prosecution is that no deal was cut and no gifts were given. Is the court really going to convict Netanyahu of committing fraud for something that did not happen, which relates to media bribery, a new and never-used-before charge? Adelson may never testify, due to his age and poor health.
In all of the above cases, Hadad’s broader theme will likely be that much of society is biased by limited personal experience, and that people have been projecting their own biases onto Netanyahu’s actions without understanding the context. Furthermore, he will depict Netanyahu as the victim of constant negative media bias.
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The defense team will depict Netanyahu as the victim of constant negative media bias