Wednesday, March 6, 2019

Tribe Envy

In disagreeing with the US Department of Justice’s long-held policy that a sitting president cannot be indicted, noted Harvard Constitutional law Professor Laurence Tribe referenced with approval the ability of Israel’s judiciary system to indict its sitting prime minister.
While I would very much prefer that Israel not find itself in the position of demonstrating the strength of its institutions under these circumstances, the situation does illustrate Israel’s remarkably independent and robust law enforcement and judiciary systems, as well as the integrity of key Israeli officials.
Professor Tribe’s “compliment:” “I’ve never agreed that a sitting president can’t be indicted. Given the fraught politics of impeachment, that policy all but puts every American president above the law. If Israel can indict a corrupt PM, we should be able to indict a criminal POTUS.”
For many the indictment has been very slow in coming. The investigation and decision-making process have taken years. The Prime Minister’s opponents have accused the Attorney General, a Netanyahu ally, of dragging his feet. The Prime Minister’s supporters have accused him of succumbing to the opposition’s pressure in filing an indictment.
The fact is that the Israeli judicial system is very thorough, robust and excruciatingly slow. It should be celebrated.
Firstly, the police, headed by a Netanyahu appointee who the Prime Minister and his supporters later attacked, conducted a thorough investigation and made his recommendations. Then the highly respected state prosecutor, whose family was subjected to personal threats, reviewed law enforcement’s work and made his recommendations. Then the Attorney General, a Netanyahu appointee under pressure from all sides, conducted his review and came to a decision.
And it isn’t over yet. Netanyahu is “indicted pending hearing,” a process that could take another year. Only after the subject of the investigation is afforded a hearing before the Attorney General can the AG file a final indictment. After that, a trial could take even more years.
Along with many others, I would like to see Netanyahu resign. Israel needs a full-time Prime Minister focused exclusively on the well-being of the country, not one desperately fighting for his legal and political lives. The work is too important, and the cloud of illegality is too heavy, for him to continue to serve while fighting the charges.
Unfortunately, according to Israeli legal scholars, it is not clear that he is required to resign until after the hearing and final conclusion.
It should be noted that it is far from unusual for the Israeli judicial system to prosecute powerful politicians. In 2012 and 2015, former Prime Minister Ehud Olmert was convicted of bribery and breach of trust for crimes convicted when he was mayor of Jerusalem. In one of the most notorious cases, Israeli President Moshe Katsav was sent to prison for rape and obstruction of justice by Judge George Karra, a Christian Arab Israeli later elevated to the Supreme Court.
While it is disappointing, to put it mildly, to see an Israeli prime minister mired in corruption and striking out against the media, law enforcement, and the judiciary in desperation, it is heartening to see Israel’s democracy and judicial system working. A sitting prime minister was indicted after a thorough process where his rights were protected. Prosecutors and police with integrity and under enormous pressure did their jobs. A free press reported on it.
Now, on April 9th, Israel will have a free election where the people, knowing the facts and the arguments, will decide whether the Prime Minister and his party will continue to lead the country. No one questions that when the time comes, power will be transferred according to the law.
This only would happen in a relatively few countries in the world. Among those countries established (or, in Israel’s case, re-established) about 70 years ago, it is particularly rare.
(Originally published in The Times of Israel)


  1. I couldn’t agree more.

  2. You characterized the Attorney General as a Netanyahu appointee. In fact, the Attorney General is appointed by a five-person committee (with a representative of the government).

    In 1997, a commission in the chairmanship of the former president of the Israeli supreme court, Meir Shamgar. The commission, adopted in 2000, recommended that the adviser will be appointed by the government according to the recommendations of a public commission, that will include five members: a retired judge of the supreme court, a former justice minister or attorney general, a Knesset member who will be chosen by the Constitutional Affairs committee of the Knesset, an attorney who will be chosen by the national council of the Israel Bar Association, and a legal expert in the subjects of civil and criminal law who will be chosen by the heads of the university law schools in Israel — in order to ensure the choosing of an appropriate person who possesses the fitting qualifications for the job.

    In our current case, in 2016 the committee to appoint Mandelblit was headed by former Supreme Court President Asher Grunis. The representative of the Knesset was Nurit Koren, a representative of the government. Former Minister of Justice Moshe Nissim was the representative of the Israel Bar Association and was represented by Prof. Gabriela Shalev.

  3. It was interesting to read your TRIBE ENVY.

    However there is still one element missing in our
    system, and that is a limitation on the number
    of terms a Prime Minister can serve.
    Recently some writers have put forward there should
    be a limitation of 8-10 years.

  4. Actually they won't know the proven facts. Only the allegations and the arguments.

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