Congress or Mandelblit?
A look at the Israeli and US system to hold leaders accountable
While watching the live broadcast of the first day of the public impeachment hearings against President Donald Trump in the Intelligence Committee of the US House of Representatives last Wednesday, I couldn’t stop thinking of the pros and cons of what I was watching, compared to the long and cumbersome legal proceedings being carried out against Prime Minister Benjamin Netanyahu.
I admit that the thought of comparing the two proceedings came to me as a result of a talkback written by Larry Goldstein, an American patent lawyer who lives in Modi’in, to one of my recent articles.
Goldstein, one of my more polite critics, is disturbed by the fact that, in the final reckoning, Netanyahu’s legal fate rests in the hands of an unelected official (Attorney-General Avichai Mandelblit), who can single-handedly decide whether to indict him and on what charges, and supposedly also on whether he can continue to serve if indicted (even though the law states that he can remain in office until found guilty in a final court instance for an offense that involves moral turpitude).
Under the American impeachment system, he says, it is a large number of elected congressmen who are involved in the decision whether to indict, and the president cannot be forced to leave office unless convicted on charges enumerated in the Constitution.
BEFORE WE start comparing what I will call in short “impeachment versus Mandelblit,” it should be noted that the two cases are both similar and different. In both cases, we are dealing with leaders who consider themselves to be superstars, who pay little attention to conventional norms of behavior, to the extent of allegedly frequently acting contrary to state regulations and the law. Both believe that the conventional media are biased against them and accuse them of spreading “fake news,” while using social media against their opponents in scandalous ways. Both are also inclined to carry out a totally personal foreign policy, from which the professional diplomats are usually left out, and both are not averse to mixing their personal political interests with international state affairs. To a large extent, the current investigations against both are a function of these factors.
However, while the case being investigated against Trump concerns only one alleged event, which has been raised by the Democratic majority in the House on strictly political grounds ahead of the 2020 presidential election, and nobody has any illusions that there will actually be an impeachment, since the Republicans have a majority in the Senate, which will prevent a conviction even if the House decides to indict, Netanyahu’s investigations are a totally different matter.
In Netanyahu’s case, we are talking of three separate cases involving his hedonistic lifestyle that allegedly was paid for by very wealthy friends in return for favors, and all sorts of fishy dealings with influential local media moguls, allegedly designed to improve the reporting on the Netanyahu family in return for financial benefits.
Although Netanyahu claims that the investigations are all part of a political conspiracy against him in which the police and the State Attorney’s Office are involved, and that “there will be nothing because there is nothing,” and although there is no doubt that it was the media that reported many of the stories that led to the investigations, no political party is involved. Unlike the Trump case, unless Netanyahu can somehow manage to use his immunity as an MK to avoid being put on trial, the chances of his being convicted on charges of fraud and breach of trust are high, even though the charge of bribery might fall.
As to the current proceedings in Congress, the issue being investigated is whether, in the course of carrying out back-channel talks with the newly elected Ukrainian president, Volodymyr Zelensky, Trump blackmailed Zelensky and conditioned the continuation of American military aid to Ukraine on its opening an investigation against former vice president and current aspirant to be the candidate for president on behalf of the Democrats in the 2020 elections, Joe Biden, and his son Hunter, who served as a highly paid member of the board of directors of a major Ukrainian natural gas producer in the years 2014-2019, on suspicion of corruption.
The Democrats decided to use this allegation as a basis for impeachment proceedings, arguing that the president acted inappropriately by using official policy to achieve a personal political goal, and using his private attorney – Rudy Giuliani – as a go-between, and to smear the US ambassador to Ukraine at the time, Marie Yovanovitch, who was known to be worried about the back channel, and was subsequently removed from office.
In regular legal proceedings the facts in this case could have been easily verified, but the president cannot be investigated and indicted outside Congress, and therefore regular legal proceedings cannot be held. What has aggravated the situation is the fact that the State Department has forbidden its employees to appear as witnesses before the House committee, and so far the only diplomats who have agreed to give evidence have no firsthand information about the allegations. In other words, for the time being, there is just a lot of hearsay evidence, and some highly problematic conduct by the president, such as derogatory, allegedly libelous tweets about Yovanovitch and her diplomatic career, as she was giving evidence.
So, while viewing the impeachment hearings (I viewed those on Friday as well) has been a fascinating experience, I cannot see how they can ensure that the truth will come to light.
Now, one of the main arguments in favor of the American impeachment system is that since the president is directly elected, by right it should be the people who decide whether he should be impeached, and this can best be done by their elected representatives.
However, in Israel the prime minister is not directly elected. He is selected by the president of the state to form the government on the grounds that his party has the best chances of forming a coalition with a Knesset majority. He continues to serve by force of the support of a Knesset majority, and under the circumstances it is hard to see the Knesset deciding to impeach him. The Knesset does have the power to overthrow the government and its head at any time by means of a vote on a motion of no confidence. This happened only once in Israeli history – in March 1990.
Side by side, the law enables the attorney-general to indict the prime minister on criminal charges after a very extended and precise process: a police investigation, recommendations by the State Attorney’s Office, followed by a hearing for the prime minister, before the attorney-general makes his final decision whether to indict.
Does anyone really believe that a Knesset committee, manned by a group of MKs from all the parties, who “lack the tradition required for people to present, examine, and cross-examine witnesses in a civil manner” (to quote Goldstein), are really likely to reach more balanced and just decisions than Mandelblit? I doubt it.