WhatsappThere are reasons to oppose the push to pardon Prime Minister Benjamin Netanyahu that originated with President Donald Trump. But his farcical trial should still end.
There are some sound reasons for Israeli President Isaac Herzog to choose not to grant a pardon to Prime Minister Benjamin Netanyahu. But none of them have anything to do with justice, defending the Jewish state’s judicial system or even its democracy.
The idea didn’t originate with Netanyahu, who has consistently said the only proper way to end the long-running farce of his prosecution and trial should be with a full acquittal. Still, the prime minister wound up sending a request for a pardon largely as a result of foreign pressure. The controversy began, after all, when President Donald Trump suggested that Herzog grant the pardon when speaking to the Knesset on Oct. 13, after coming to Israel to celebrate the release of the 20 remaining living hostages held by Hamas since Oct. 7, 2023, and the ceasefire in the subsequent war in Gaza.
Trump should stay out of it
Whether one sides with Netanyahu and believes that the entire case is a politically inspired travesty of justice or are someone who supports the effort to prosecute him, the suggestion was itself inappropriate. Trump may have proven to be the best friend that Israel has ever had in the White House, and he’s right that the ongoing trial is an unnecessary distraction from the vital diplomatic and security questions facing the U.S.-Israel alliance and the Middle East, in general. But this sort of heavy-handed American intervention into something that is clearly an internal Israeli concern is just wrong.
That being said, the reason why this matters to Trump is not merely a matter of him playing favorites in Israeli politics. The U.S. president may not be all that knowledgeable about Israeli politics, but he knows a thing or two about lawfare.
It is a sad fact of political life in Israel and the United States that the use of the law to target and take out opponents has become ubiquitous in the last decade. In both countries, liberal elites have sought to end the careers of the two men who were and are their principal nemesis. Ending the Netanyahu prosecution via the pardon route is a terrible idea. Nevertheless, stopping the prime minister’s trial—which began in 2020 and could, if not stopped by a pardon, go on for years to come—is something that ought to happen.
The analogies between the prosecutions of Trump under the Biden administration and the case against Netanyahu are inevitable, yet apt. If, as The New York Times suggested in a blatantly biased article stuffed with partisan anti-Trump and anti-Netanyahu talking points but still labeled as “news” claimed, the prime minister is using the same playbook employed by the president in his efforts to counter the charges against him, he has good reason to do so.
Politically-motivated prosecutions
Whatever you might think of either man, their prosecutions were politically motivated.
The efforts to first bankrupt and then jail Trump on various charges related to fraud in his business dealings, payoffs to a woman who claimed to have an affair with him or even those relating to his efforts to challenge the 2020 election results had little to do with the “rule of law,” as his opponents falsely claimed. The truth about all the allegations wasn’t flattering, but neither was there any real proof of lawbreaking or criminal intent. It wasn’t that he was trying to be treated as above the law as much as Democratic Party prosecutors were attempting to treat him as below it, charging him with crimes that would not be filed against anyone other than someone who was a political target.
While ardent Trump-haters may regret that he wasn’t somehow jailed or ruled ineligible to run again for the presidency in 2024, the fact remains that last year’s election was, in addition to other issues, a referendum on the Democrats’ lawfare campaign against him. Indeed, rather than ensure that he couldn’t return to the White House, it’s arguable that the unfair prosecutions made his renomination by the Republican Party a foregone conclusion and helped fuel his general election victory.
Yet the cases against Netanyahu are, if anything, even flimsier than the ones Trump faced.
The three cases—labeled Case 1000, Case 2000 and Case 4000—are each insubstantial.
The first, Case 1000, centers on the allegations that the prime minister accepted valuable gifts, in the form of champagne and cigars, in exchange for political favors to wealthy donors. There is no proof that the alleged favors occurred, and evidence at the trial indicates that many of the gifts were intended for other guests of the donors. While it has become an article of faith among much of the Israeli public that Netanyahu took bribes, all he appears to be really guilty of is having rich friends and expensive tastes.
Case 2000 also lacks substance. It alleges that the prime minister acted improperly by discussing a possible bargain with the head of a critical newspaper in which the publisher would give Netanyahu favorable coverage in exchange for the prime minister supporting legislation that would hurt Israel Hayom, the pro-Likud newspaper owned by the late casino magnate and philanthropist Sheldon Adelson. Since nothing came of the conversation, the criminality is hard to find. The charge is also a joke because the effort to strangle Israel Hayom by the left-wing opposition parties and rival papers was itself an anti-democratic plot against freedom of the press that Netanyahu ultimately foiled.
In Cases 1000 and 2000, the specific charge is a breach of public trust. But again, even if there is something unseemly about a prime minister taking cigars and champagne or in having such conversations, there is no Israeli law that prohibits either of the alleged criminal actions. In other words, like some of the charges against Trump, they are the result of novel legal theories invented solely to take out a political opponent and completely untethered to the rule of law that Netanyahu’s opponents claim to be upholding.
Case 4000 seems a bit more substantial since it involves claims that Netanyahu traded regulatory decisions that favored the Bezeq Company in exchange for favorable coverage on its Walla news site. But since Walla remained consistently critical of the prime minister, it’s hard to see how that constitutes actual bribery. Even if it had flipped to favor the Likud, as in the other cases, there is no Israeli law on the books that says asking for favorable coverage—something politicians do all the time—is considered bribery.
So, while Netanyahu’s critics routinely call him the “crime minister” and speak of him in their weekly demonstrations as if he is a monster of corruption, if these appallingly thin cases are the best his opponents can muster to prove those assertions, then it is obvious that there’s not much to their claims other than partisan spite.
The real corruption
What’s also obvious is that the determination to pursue these cases with all the force a hostile liberal legal establishment can muster, including brutal and possibly illegal attempts to coerce witnesses into giving evidence against him, stems entirely from their frustration at being unable to get rid of Netanyahu through the existing mechanism for ousting politicians: elections.
While some of these allegations may stem from the prime minister’s sense of entitlement (the natural result of being in power so long), the real corruption here is not to be found in his behavior. Rather, it is that of a judicial system that allowed a campaign of lawfare to drag the country into a legal mess that never rose to the level that might justify trying to topple a sitting prime minister.
That the case took four years from the inception of the investigation to the indictments being handed down was a disgrace. That the trial has continued for five years, during which elections have been held and a two-year war fought with multiple enemies, is nothing less than a scandal.
Seen from that perspective—and given that the judges in the case have already indicated that the most serious charge should be dropped—perhaps Herzog would be right to end the circus of the Netanyahu trial.
Even if Herzog was inclined to do so, it’s highly likely that he would ask Netanyahu to admit guilt and/or to resign from public life in exchange for a pardon.
That is something Netanyahu shouldn’t promise since doing so would grant an undeserved victory to the prosecutors. Pressure from Trump, whose goodwill is an Israeli national security asset, may have forced him to apply for a pardon. Still, he should not budge from the position that if he is to accept one, it cannot be at the price of granting legitimacy to a legal travesty.
Nor would a pardon, as Netanyahu’s petition claimed, lead to national unity.
Nothing short of the prime minister being toppled from office and hauled off to prison will assuage the hunger on the part of Netanyahu’s opponents to discredit him. A pardon will only further enrage them. And far from calming the large proportion of the voters who do support Netanyahu, a pardon that provided a victory for their opponents without the benefit of actually beating him at the polls would further embitter them as well. It would deepen their distrust of what they already consider to be a judicial system whose primary purpose is to thwart the popular will, rather than defend majority rule against the desire of left-wing elites to hold onto power regardless of how many elections they lose.
The best thing for Israel is for the trial to play out, however long that takes, even if the judges should have dismissed the charges long ago. Only if, in the face of all the credible evidence, Netanyahu is nonetheless convicted should a pardon be considered.
Stop the lawfare
What this controversy should lead to isn’t so much a debate about Netanyahu’s innocence or guilt, but efforts by Israel’s leaders to ensure an end to the spirit of lawfare that created this fiasco.
The problem is not how Herzog or Trump himself may use or abuse the power to pardon, though President Joe Biden’s pre-emptive pardons for his family when he was leaving office for any charges that might be lodged against them for their influence-peddling business brought an already controversial process into complete disrepute. Rather, it is how Israel and the United States can end the cycle of political score-settling that has been allowed to hijack the judicial systems of both countries.
Herzog might take a step in that direction if he were to issue an unconditional pardon of Netanyahu. Biden should have done the same for Trump two years ago, which would have probably taken some of the wind out of his sails in his drive to return to the White House, fueled in no small measure by the outrage felt by many people at the unfair treatment he was getting.
Yet it’s unlikely that Herzog will do that because it would end whatever hopes he might harbor for a return to electoral politics after his term in the nonpartisan office of president. He also probably realizes that a pardon will further embitter the anti-Netanyahu left that perceives the effort to jail their bête noir as part of a broader culture war they are waging against religious and right-wing Israelis whose numbers continue to grow.
Israel has real problems. That includes questions about responsibility for the Oct. 7 disaster and how to ensure that the ceasefire doesn’t merely provide a temporary respite from war before Hamas resumes its efforts to destroy the Jewish state. There are also justified complaints about the failure of the large Haredi sector of the population, who don’t contribute to the army or national service in a time of war, and whose male population is also opting out of participation in the economy while expecting the rest of the country to both defend and provide financial support for their families.
Still, the effort to take the question of who should lead Israel out of the hands of the voters is a far greater threat to “democracy” than Netanyahu’s failed attempt to reform an all-powerful and out-of-control judiciary. His fate should rest with the verdict of the voters when they return to the polls sometime in the next year, not with a panel of judges sitting in a courtroom presiding over a marathon legal farce or a president with the power to pardon him.
The conclusion to be drawn from these cases is that it’s vital that the political establishment in both countries never again tries to jail their political opponents, rather than sticking to efforts to defeat them at the polls, however difficult or frustrating that task might be. The same is true of Trump’s obvious attempt to take revenge on those who unfairly pursued him in a similar manner, even if the impulse is understandable.
Lawfare, such as we have seen in both countries, is the result of an intolerant brand of politics that views opponents as enemies to be delegitimized and destroyed, rather than fellow citizens with whom we might disagree. Attempts to imprison foes are wrong under any circumstance, let alone when they involve the sort of insubstantial charges lodged against Trump and Netanyahu. The cases against them are the stuff of banana republics, not democracies.
