Law professor Avi Bell talks with JNS about the potential danger the cases against Benjamin Netanyahu pose to Israel’s democracy.
By Alex Traiman, JNS
This week, a recording of a conversation between Prime Minister Benjamin Netanyahu and the owner of Israel’s Yediot Ahronot newspaper, Arnon Mozes, was released to the press.
The clip, one of many recordings being used as evidence in Case 2000 — one of three cases in which Israel’s Attorney General Avichai Mandelblit may soon issue formal indictments against the prime minister — demonstrates an attempt by Netanyahu to secure more favorable coverage in one of Israel’s largest papers.
A steady stream of leaks from all three cases have been gifted to the media for the purpose of souring much of Israel’s political establishment and public on Netanyahu’s otherwise intractable reign as Israel’s longest-serving prime minister.
Yet according to a high-profile international legal team that rushed to Netanyahu’s defense during recent pre-indictment hearings, Netanyahu’s attempts to influence the media are standard practice for politicians and not criminal in nature, even if political favors were granted in return for positive coverage. Furthermore, if criminal charges are ultimately filed against him for trading such favors for coverage, they argued, it would represent an unimpressive first for any society operating with a free press.
Professor Avi Bell, a member of the Faculty of Law at Bar-Ilan University in Ramat Gan and the University of San Diego School of Law, and one of the lawyers who submitted the brief challenging the tentative charges against Netanyahu, told JNS that “prosecuting a bribery charge in these cases is a mistake. Pursuing these charges is unprecedented in the democratic world, dangerous to the fabric of Israeli democracy and ill-advised.”
The brief, authored by Bell as well as Alan Dershowitz, Nathan Lewin, Richard Heideman and Joseph Tipograph, and presented to Mandelblit and state prosecutors during the pre-indictment hearings by Bell and Lewin, insists that positive media coverage can never constitute a bribe.
“There is no case we can find anywhere in the democratic world where positive coverage has ever been considered a potential ‘bribe,’” said Bell.
Case 1000: Champagne and cigars
Netanyahu is currently being accused of violating the public’s trust in three separate cases.
In Case 1000, Netanyahu is accused of the misdemeanor crime of “breach of trust” for receiving gifts, most notably champagne and cigars, cumulatively worth more than $200,000, from longtime friends, including film producer Arnon Milchan, over an extended period. In addition to failing to appropriately register the gifts, the charges cite Netanyahu for performing various favors for those who gave the gifts, such as assisting Milchan to obtain a visa to travel to the United States.
It is not asserted in the charge sheet that the favors were part of an organized exchange.
Netanyahu’s continuously strong showings in the recent elections demonstrate that Israel’s electorate does not believe such behavior, as unseemly as it may appear, is enough to remove a sitting prime minister from office.
Case 2000: The trade that never happened
In Case 2000, in which Netanyahu is also accused of “breach of trust,” the prime minister principally agreed in conversations with Yediot publisher Mozes to advance legislation that would curtail the free circulation of the rival Israel Hayom newspaper, Israel’s largest distribution newspaper and the only major media outlet in Israel that is generally supportive of Netanyahu. Mozes, for his part, promised Netanyahu improved coverage in Yediot.
Hurting Israel Hayom would have caused long-term public relations damage to Netanyahu by harming the only outlet that generally supports him while financially benefiting the rival, anti-Netanyahu subscription newspaper Yediot.
There are a few challenges to the prosecution’s case. First is that the proposed quid pro quo never took place. Netanyahu never advanced the legislation, and by all accounts Yediot’s press coverage never shifted in Netanyahu’s favor. While Mozes is being accused of offering a “bribe” in the form of positive coverage, Netanyahu is being accused of “breach of trust” for playing along and failing to report Mozes’s offer, despite neither party making good on the proposed exchange.
The second major challenge is that leaks from the case confirm that Labor Party Knesset member Eitan Cabel, who authored the bill with direct assistance from Mozes, was also offered positive coverage. Furthermore, 42 other MKs, who by and large wanted the bill passed specifically to harm Netanyahu’s standing in the media, may also have received promises of positive coverage for their support.
To date, neither Cabel nor any other MKs have been charged with bribery or breach of trust.
Case 4000
In Case 4000 — billed as the most serious of the cases — Netanyahu is accused of advancing regulations, while simultaneously serving as communications minister, to facilitate a merger between two of Israel’s largest telecommunications companies, Bezeq and YES, a merger that stood to benefit Shaul Elovitch, who owns both companies.
The charge sheet claims that in return for the regulatory favors Netanyahu demanded and received positive press coverage on the Walla news site, also owned by Elovitch, over an extended period. Both Netanyahu and Elovitch are being charged with felony bribery.
This case too, however, faces challenges. The Bezeq/YES merger had been on the table for many years and was officially approved by Israel’s antitrust authorities. The charge sheet against Netanyahu does not suggest he used any influence on the authority’s approval. The merger itself was therefore legal and required regulatory changes before it could be implemented.
As such, by advancing the regulatory changes Netanyahu was simply doing his job as communications minister. The illegal act the prime minister is accused of is demanding and receiving a “bribe” of positive media coverage.
Bell notes that “in the interim charge sheet released by the attorney general in February, there are no allegations that aside from the claim of positive coverage ‘bribery,’ the actions of the prime minister were improper.”
‘Routine exchanges’
The brief submitted by Netanyahu’s attorneys demonstrates that “media empires … routinely exchange favorable coverage for official acts.”
The document presents a litany of examples whereby media moguls such as William Randolph Hearst and Joseph Pulitzer have implicitly traded positive coverage for political favors that include the altering of government policies and regulations that financially benefited the media owners. Specifically, the brief references multiple examples negotiated decades apart between Rupert Murdoch, and British premiers Margaret Thatcher and Tony Blair.
Particularly in today’s age of polarized media, it is literally the business of outlets to provide positive coverage to those politicians or candidates they like, while providing negative coverage of those politicians they don’t. And it is the job of politicians and candidates to secure the best possible coverage they can, while ensuring that their political rivals receive the worst coverage possible.
And often, such coverage is granted as the result of favors. Politicians consistently lobby media outlets with whatever they have at their disposal to gain improved coverage. They will often provide scoops and otherwise hard-to-get access to reporters with the understanding that coverage will be in their favor. And media outlets are happy to play along, even actively courting such favors. These are simply the often-not-so-pretty operating procedures of a for-profit free press.
Bell told JNS that “if bargains for positive coverage between public officials and media figures can be punished as bribes, then every report about a matter of public interest is potentially the basis of a bribery charge, and every interaction between a journalist and a public official is potentially relevant evidence of a crime.”
Furthermore, even the lesser misdemeanor charge of breach of trust may be inappropriate, he said.
“Treating bargaining between public officials and media figures over positive coverage as a criminal transaction is a danger to free speech,” said Bell, “whether that transaction is called the crime of bribery or breach of trust. The bribery-related charges — and this includes the claim in case 2000 that the prime minister committed a ‘breach of trust’ by failing to react properly to a proposed ‘bribe’ of positive coverage—go to the very heart of freedom of speech and freedom of the press.”
‘Chilling of free speech’
The result of treating media coverage as a bribe, according to Netanyahu’s legal team, would be the effective “chilling of free speech,” whereby journalists would refrain from publishing specific types of coverage for fear of potential retroactive prosecution. According to the team’s brief, this “chilling effect” has significant precedent in British and American law and has been thoroughly examined by the European Court of Human Rights, which has ruled that this form of self-censorship “works to the detriment of society as a whole.”
“All journalists who report on public affairs will have to worry about finding themselves subject to criminal investigations and arrest,” said Bell, adding that in such a scenario “almost all reporting could potentially be considered a bribe.”
This, Bell explains, would create an unprecedented reality whereby “police and prosecutors will become the final arbiters of what can be reported, rather than the free press.” In scenes that would resemble those common in dictatorial regimes, “prosecutors and police would have an enormous power to play favorites,” Bell said, which could be used to “intimidate and silence” political opponents.
“It’s a nightmare scenario that fits regimes like Turkey and China, and has always been rejected by democratic states outside Israel,” said Bell.
What constitutes a breach of trust?
Complicating the case for Netanyahu, said Bell, is that Israeli bribery law is “unusually strict.”
Bell explained that in most of the democratic world, “a bribe is an illicit payment in exchange for a favorable official act that gives a benefit to the bribe payer.” In Israel, he noted, “almost none of that is necessary. If the bribe payer hopes to get a benefit in the future, but doesn’t have anything specific in mind, it can still be a bribe.”
Furthermore, he added, “there doesn’t have to be a benefit to the bribe payer. If the bribe payer gets exactly the same services he or she would have received without the bribe, the criminal law still considers it a bribe.”
Bell suggested that the combination of this overly strict interpretation of bribery and positive coverage potentially being classified as bribery was “particularly dangerous.”
“Prosecutors could put journalists in jail for seven years as long as they could prove that their coverage helped someone and the judge inferred that the journalist had an expectation of benefiting,” said Bell. “And public officials could be convicted any time they delivered an official service of any kind to someone who wrote a nice story about them.”
Meanwhile, the requirements for proving or disproving the lesser, misdemeanor charge of breach of trust is very much open to interpretation.
“One of the real problems here,” Bell said, “is that — as many Israeli judges have noted — a breach of trust is a crime without a clear definition, so what looks like a breach of trust depends very much on the judge.”
Bell noted that “it is possible, of course, for there to be a breach of trust in some other aspect of the cases, if for example Netanyahu acted improperly aside from the alleged bargain for positive coverage. But no such allegation appears in the interim charge sheet, so there doesn’t seem to be a case of breach of trust in either case 2000 or 4000.”
The complicated nature of media leaks
The irony of the cases regarding Netanyahu’s attempts to manipulate the media is that the very same investigators and prosecution attempting to hold him accountable have themselves been manipulating the press, and through it public opinion.
By leaking what should otherwise be legally protected evidence, referendums on Netanyahu’s conduct are simultaneously taking place within the offices of the attorney general and state prosecutors, as well as at the ballot box and the Knesset during protracted rounds of parliamentary coalition negotiations.
Yet if the same stringent theories are applied to the prosecution’s manipulation of the media as are being applied to Netanyahu’s, one could easily argue that the leaks themselves are bribes. Such leaks constitute immeasurable favors to the media outlets who receive them, in the form of readership and ratings, which provide direct monetary benefit to media owners.
“According to the prosecution’s theory that helpful news coverage is a bribe, all the leaks are potential bribes,” said Bell, “and the only way to know if they are lawful is to haul in all the relevant journalists and investigators, and interrogate them about their motives.”
So why aren’t the leaks being restricted or even prosecuted? Bell noted that ironically, “Several years ago, legislation was proposed that would have made the illegality of such leaks clear. However, the proposed legislation was controversial for the obvious reason that it would have punished speech and would harm free speech.”
This, Bell contended, further illustrated the danger of creating such a broad crime by allowing positive coverage to be considered bribery.
“The lack of prosecutorial attention to the leaks as bribes or to the other media bargains, such as between Eitan Cabel and Arnon Mozes in Case 2000, as bribes shows how dangerous it is to create a crime that can potentially attack everyone, but will in practice only be used against a disfavored few,” he said.
Yet Bell doesn’t suggest that the leaks be investigated or prosecuted. “I don’t think the right response to unfair leaks is to make even more speech subject to criminal penalty,” he said.
“It’s quite clear that whatever the flaws in politician-media relationships in Israel today, there’s nothing that would be as devastating to freedom of speech as giving the police power to inspect the motives of all news coverage that helps or hurts a public figure,” said Bell. “The damage to freedom of speech and, more generally, to a free society, would be incalculable.”
It appears that the case made by Bell and Netanyahu’s international legal team may yet have a significant impact on the charges to be leveled in the coming weeks by the attorney general. Media reports indicate that Mandelblit is already seriously considering dropping the felony bribery charge in Case 4000 and dropping all charges in Case 2000.
The attorney general is expected to announce whether or not he intends to indict Netanyahu in the coming weeks, possibly during the ongoing coalition negotiating period now led by Netanyahu’s challenger, Blue and White leader Benny Gantz. If charges are dropped or reduced, Netanyahu’s chances of remaining in power may improve. Yet the damage to his reputation and tenure as prime minister due to an unprecedented legal process may already be irreversible.
Alex Traiman is managing director and Jerusalem Bureau Chief of Jewish News Syndicate.