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The State of Israel vs Benjamin Netanyahu

With the Jerusalem District Court on Wednesday rejecting Benjamin Netanyahu’s request to skip the start of his corruption trial, Sunday will officially mark a new precedent for Israel: a sitting prime minister in the dock as a criminal defendant.

“The rule is that a defendant is present for the reading [of the indictment], which is the opening of the trial. This is the case in every criminal procedure including the current criminal procedure,” the three judges set to preside over the trial wrote in their ruling, making clear that before the law, Netanyahu is no different than any other Israeli citizen, and will not be treated so during the trial.

“We did not find in the explanations of the petitioner reason to justify an exception to this rule,” they added in their response to Netanyahu’s request to skip the opening day of the trial, originally scheduled for March 17, but pushed off by two months after then-justice minister Amir Ohana declared a “state of emergency” in the court system in light of the coronavirus pandemic.

Only a week before the opening, Netanyahu on Sunday swore in his new unity government, ending a 508-day political crisis during which Israel was ruled by a transitional government and held three consecutive elections. Already in power for over a decade, he will now likely be prime minister for at least another 18 months, as he fights the corruption charges.

Sunday’s hearing, in which the three judges — Rebecca Friedman-Feldman, Moshe Bar-Am and Oded Shaham — will read out the charge sheet against the prime minister and three other defendants — Shaul and Iris Elovitch and Arnon Mozes — requires Netanyahu’s presence, they said, so as to confirm he properly understands the charges he faces.

But while the judges flatly rejected Netanyahu arguments for not attending — including the claim that the large number of security guards accompanying him would violate Health Ministry guidelines limiting the number of people in a courtroom, as part of measures to contain the coronavirus — the decision does not mean that the prime minister will be a regular presence in the dock.

Former prime minister Ehud Olmert, who underwent two full criminal trials after he had left office, very rarely showed his face in the courtroom at all. He appeared only at the opening of the trials, the prosecution and defense summaries, when he testified or was cross-examined, and for the verdicts and sentencings.

Netanyahu and his legal team are expected to try and keep the prime minister out of the court room for as much of the trial as possible. But on Sunday, sources close to the premier confirmed, Netanyahu will indeed attend, in accordance with the judges’ ruling.

The charges and the defendants
Netanyahu is on trial for seven separate criminal charges: bribery, fraud and breach of trust charges in Case 4000, and fraud and breach of trust in both Cases 1000 and 2000.

In Case 4000, widely seen as the most serious against the premier, Netanyahu stands accused of having advanced regulatory decisions that benefited Shaul Elovitch, the controlling shareholder in the Bezeq telecom giant, in exchange for positive coverage from the Elovitch-owned Walla news site. In that case, both Netanyahu and Elovitch are on trial for bribery.

The indictment, released by state prosecutors in November, says the relationship between Netanyahu and Elovitch was “based on give and take,” and the prime minister’s actions benefiting Elovitch netted the businessman benefits to the tune of some NIS 1.8 billion ($500 million) in the period 2012-2017. In exchange, Elovitch’s Walla news site “published [Netanyahu’s] political messages that [he] wished to convey to the public,” according to the indictment.

“[Netanyahu] took benefits… while knowing [he was] taking a bribe as a public servant in exchange for actions related to your position,” prosecutors allege.

The prime minister’s actions, wrote state prosecutors, “were carried out amid a conflict of interests, the weighing of outside considerations relating to his own and his family’s interests, and involved the corrupting of the public servants reporting to him.”

In Case 1000, involving accusations that Netanyahu received gifts and benefits from billionaire benefactors including Israeli-born Hollywood producer Arnon Milchan, in exchange for favors, Netanyahu is charged with fraud and breach of trust, a somewhat murkily defined offense relating to an official violating the trust the public has placed in him.

According to the indictment in that case, Netanyahu “damaged the image of public service and the public’s trust in it, in that while serving in public positions, and foremost as prime minister… maintained for years an inappropriate relationship with billionaire benefactors.”

In Case 2000, involving accusations Netanyahu agreed with Yedioth Ahronoth newspaper publisher Arnon Mozes to weaken the circulation of a rival daily in return for more favorable coverage from Yedioth, the premier is charged with with fraud and breach of trust, while Mozes is charged with bribery.

The indictment says that Netanyahu and Mozes “recognized that the one had the ability to promote the other’s interest” in the run-up to the 2015 elections and discussed such possibilities.

“According to suspicions, in your actions while performing your duties you have committed acts that amount to breach of trust, and have caused substantial harm to the integrity [of the position] and the public’s trust,” prosecutors wrote.

The opening hearing and the full trial

The opening hearing, which is to begin at 3 p.m. on Sunday, is called the “reading” and usually includes clarifying with defendants’ attorneys whether their clients have read and understood the indictment, and their response to the charges. Then, if there are no more preliminary matters to deal with, the two sides will begin arguments to determine when the stage of presenting proof, known as “the evidentary stage,” begins.

While both local and international media will be flocking to the Jerusalem District Court on Saladin Street in Jerusalem, opposite the Justice Ministry — so much so that the court will be broadcasting the hearing to several adjacent rooms packed with journalists — the discussion itself is expected to be entirely technical.

Judges Moshe Bar-Am Rebecca Friedman-Feldman and Oded Shaham, L-R. (Justice Ministry)

Defense attorneys will be asked if the defendants have read the indictment and what their responses to the charges are — not guilty or guilty. A “guilty” plea would lead to an immediate verdict convicting the defendant of the charges. A plea of “not guilty,” as is expected from all three defendants, would allow the full trial to go ahead as planned.

Netanyahu has thus far denied the charges, and claims that he is the victim of an attempted “political coup” involving the opposition, media, police and state prosecutors.

On Wednesday, shortly after the judges’ decision that he must attend the opening hearing, Netanyahu tweeted a pair of links to articles in the Israel Hayom newspaper highly critical of the attorney general who indicted him. One article claims the state prosecution has set up the prime minister, and the other calls on Attorney General Avichai Mandelblit to either release the recordings from the contentious Harpaz Affair or resign.

Although there is little doubt that Netanyahu will eventually plead “not guilty” and seek a full trial, his defense attorneys are not expected to respond to charges on Sunday, legal sources have told The Times of Israel.

Attorneys Amit Hadad (representing Netanyahu), Jacques Chen (representing the Elovichs) and Noyat Negev (representing Mozes) will likely instead argue that they cannot answer the charges until they have received “the full investigation.” Then, a debate will begin on the question of the investigation material and what must be provided to the defendants ahead of time.

The defense, the legal sources say, will argue that every internal conversation or memorandum between the prosecutor’s office and the investigative team is part of the investigation material that defense attorneys are entitled to receive.

The state — represented by attorney Liat Ben-Ari — will argue that these documents are internal records.

The court will have to make a decision on this in the preliminary proceedings, before the evidentiary stage.

The Justice Ministry, upon a recommendation from the police, said Wednesday that it plans to assign a security detail to deputy state prosecutor Ben Ari. The ministry is also looking into the possibility of allowing Ben Ari to enter Sunday’s hearing using the judge’s entrance in order to better ensure her safety.

According to legal sources, the judges are likely to allow the defense six to eight months to study all the material – and, accordingly, set deadlines for proof for the next court year.

And then, with 333 prosecution witnesses listed in the indictment, including a veritable who’s who of Netanyahu associates and confidants, Israeli security chiefs, politicians and journalists, the real circus will begin.

Original: Raoul Wootliff – Times of Israel staff contributed to this report.