Indicting a Sitting Prime Minister: The Israeli Constitutional Framework

The recent weeks have seen a flurry of developments in a number of criminal investigations involving Israel’s Prime Minister, Benjamin Netanyahu. These developments fueled debates as to whether Netanyahu should continue serving as prime minister while facing criminal charges. Netanyahu has signaled that he has no intention of resigning. He attacked Israeli media and law enforcement for persecuting him and his family and peddling baseless allegations. His critics have argued that it would be unethical and irresponsible for the prime minister to continue running the government and making consequential decisions while juggling multiple criminal proceedings that could lead to a trial, and potentially a jail sentence.

The issue of the prime minister’s competence in light of the sprawling investigations is highlighted by the delicate situation Israel is facing on the national security front. Over the past couple of weeks alone, Israel responded to the penetration of an Iranian drone into its territory by attacking multiple Iranian and Syrian targets in Syria, a decision that could have resulted in broader escalation. The Israeli security forces have clashed with Hamas and other organizations in the Gaza strip, and tensions in the West Bank are also on the rise in light of the impending relocation of the U.S. embassy from Tel Aviv to Jerusalem in mid-May. What’s more, one of the investigations directly touches on national security matters. It looks into allegations that Netanyahu’s confidants influenced a deal to acquire military submarines from Germany in return for hefty bribes. This has raised concerns that the prime minister might be distracted by the investigations, and that his decision making even on national security matters might be tainted.

The aim of this post is not to take stock of the investigations and their potential outcomes as a matter of criminal law. Nor is the goal here to assess how the politics of the current situation are going to play out. Rather, the aim is to explore the constitutional framework that governs criminal proceedings against a sitting prime minister in Israel. The issue of whether the prime minister is constitutionally required to resign if indicted is likely to come to a head over the coming months.

The current Israeli debate about the constitutional implications of criminal action against the prime minister echoes U.S. debates around the special counsel investigation and the constitutionality of indicting a sitting president. These debates are not directly comparable in light of the substantial differences between the U.S. and Israeli constitutional structures, but similar competing values are arguably at stake in both.

A Brief Overview of the Investigations

Five graft investigations involving Prime Minister Netanyahu are now public (see also this overview in Hebrew):

• Case 1000 pertains to lavish gifts the prime minister and other members of his family had received from wealthy businessmen Arnon Milchan and James Packer. It examines whether those gifts were in fact a bribe and whether Netanyahu took advantage of his position to promote Milchan’s interests.
• Case 2000 looks into suspicions that Netanyahu tried to strike a deal with the publisher of Israel’s second largest newspaper, Yedioth Ahronoth, whereby he would receive positive coverage in return for limiting the circulation of that paper’s main rival, Israel Hayom.
• Case 3000 examines corruption in the purchase of submarines and ships from Germany. The prime minister has not been named a suspect in this investigation. However, the investigation involves a number of officials deemed to be close to Netanyahu, including his personal attorney and adviser, David Shimron.
• Case 4000 investigates misconduct in the telecommunications sector. It looks into the relationship between Netanyahu and the heads of Bezeq, Israel’s largest telecom company. Netanyahu, who until recently served as minister of communications in addition to being prime minister, allegedly did not disclose this relationship despite the fact that it placed him in a conflict of interests as the regulator in charge of Bezeq. Netanyahu’s Communications Ministry allegedly gave preferential treatment to Bezeq and benefits worth about a billion shekels in return for favorable coverage on Walla, a popular news website controlled by Bezeq’s owner. Furthermore, it is alleged that after the relationship became known, Netanyahu continued his involvement in issues affecting Bezeq’s owner even though the attorney general barred him from handling any further decisions that involve or substantially influence him. Netanyahu is due to be interrogated on this matter on Friday.
• Case 1270 investigates allegations that in 2015, a Netanyahu confidant proposed, through an intermediary, to appoint a candidate for the position of attorney general if she agreed to drop a case against Netanyahu’s wife, Sara, for misuse of government funds in the prime minister’s residences.

The Israeli police concluded its investigations in cases 1000 and 2000. It recommended that the prime minister be indicted for requesting and accepting a bribe, fraud and breach of trust. The ball is now in Attorney General Avichai Mandelblit’s court, who will decide whether or not to indict the prime minister; he is not bound by the police recommendations. The other investigations are ongoing. Related developments and scandals have taken over the Israeli public debate over the past few weeks (complete with former subordinates of Netanyahu becoming state witnesses and inappropriate texting between an investigator and a magistrate judge).

Indicting a Prime Minister

Basic Law: The Government (2001) is the constitutional norm that governs the structure, authorities and responsibilities of the government in Israel. It was originally enacted in 1968. A later version was adopted in 1992, in the framework of an electoral reform that allowed for the direct election of the prime minister alongside traditional parliamentary elections. That reform did not last, and in 2001, with the adoption of the current version of the Basic Law, Israel reverted back to the system of indirect election of the prime minister. In the current system, the prime minister is the member of the Israeli parliament (Knesset) who receives the support of a majority of its members. Typically, but not necessarily, the prime minister is the leader of the party with the most seats.

The Basic Law makes it clear that a sitting prime minister can be indicted. According to article 17 of the Basic Law, the attorney general must approve the initiation of a criminal investigation against a sitting prime minister. If the investigation produces grounds for an indictment, the attorney general may indict the prime minister. Like any other Knesset member, the prime minister may then request the Knesset to grant him immunity from criminal indictment under Article 4 of the Immunities, Rights and Obligations of Knesset Members Law, 1951. If the prime minister is indicted and is not granted immunity, he or she will face trial in the Jerusalem district court. As previously mentioned, the attorney general is now considering whether to indict the prime minister for accepting bribes, fraud, and breach of trust in cases 1000 and 2000. The other investigations have not yet ripened.

It is not entirely clear, however, what the legal consequences of an indictment would be for the prime minister’s continued service in the timeframe between the indictment and the completion of his trial. Article 18 of the Basic Law addresses the possibility of the prime minister being convicted of a criminal offense (Knesset translation):

18. (a) Should the Prime Minister be convicted of an offense which the court defined as involving moral turpitude, the Knesset may remove him from office, pursuant to a decision of a majority of the Knesset members. Should the Knesset so decide, the Government shall be deemed to have resigned.

(b) Within 30 days of the verdict becoming final [this is an error in translation. The Hebrew text does not include the words “becoming final” – EC], the Knesset Committee of the Knesset will render its decision regarding its recommendation pertaining to the removal of the Prime Minister from office, and shall present its recommendation to the Knesset plenum; should the committee fail to bring its recommendation to the plenum during the prescribed period, the Speaker will raise the issue in the Knesset plenum.

[…]

(d) Should the Knesset decide not to remove the Prime Minister from office, and should the verdict as per section (a) above become final, the Prime Minister will cease to serve in office and the Government shall be deemed to have resigned.

Article 18 tells us little in explicit terms about the implications of an indictment. Section 18(a) only refers to a criminal conviction with “moral turpitude.” Another point to note about Article 18 is that the prime minister is not automatically removed from office even in the event of a criminal conviction. According to Article 18(d), the conviction must be final for the prime minister to be automatically removed. A conviction would be deemed final if the timeframe for filing an appeal to the Supreme Court had elapsed, or once it is upheld on appeal. In the intervening period, the Knesset may—but is not required to—vote to remove the prime minister from office by a simple majority. I should note that in addition to the removal procedures provided for in Article 18 of the Basic Law, the Knesset could theoretically replace the current government through a vote of no confidence. But according to Article 28 of the Basic Law, this option would only be available if a majority of Knesset members agree to support an alternative government. This is a more complex task for the Knesset than simply voting for removal under Article 18 without agreeing on an alternative. It might not be politically attainable in the present Knesset.

On its face, Article 18 of the Basic Law allows the prime minister to remain in office until his criminal trial is exhausted, unless the Knesset moves to unseat him. This could take years. For comparison, Netanyahu’s predecessor, former Prime Minister Ehud Olmert, was first indicted in August 2009. The Supreme Court decided his appeal in that case seven years later, in September 2016. Of Course, Olmert resigned in September 2008, before he was even indicted, although he continued to serve as interim prime minister until Netanyahu assumed office in late March 2009. Similarly, former Prime Minister Yitzhak Rabin resigned as prime minister in 1977, after it became known that his wife kept dollar accounts in a U.S. bank in violation of Israeli law at the time. The accounts were left over from the time Rabin had served as the Israeli ambassador to Washington. Although this was arguably a relatively minor regulatory infraction, Rabin stepped down. Therefore, Netanyahu would set a precedent if he chooses to remain in office while facing a criminal trial.

Because there is no precedent for a criminal trial against a sitting prime minister, the Supreme Court has yet to weigh in on whether the prime minister may remain in office after being indicted until his trial is over. But a number of decisions concerning the removal from office of other elected officials who had been indicted and faced a criminal trial might offer some guidance.

In 1993, the Supreme Court ordered then-Prime Minister Yitzhak Rabin (in his second term) to fire his interior minister, Aryeh Deri, after Deri was indicted with multiple charges of corruption. In a similar decision, the court ordered Rabin to fire Raphael Pinchasi, a deputy minister indicted for fraud. There was no statutory provision that required the prime minister to fire Deri or Pinchasi in light of their indictment. Still, the court held that statutory termination requirements do not exhaust the circumstances in which the prime minister or a government minister might be legally required to exercise their removal power against a minister or a deputy minister. Statutory requirements set the minimal threshold a public official must meet in order to have competence to hold public office, but the prime minister must still exercise reasonable discretion in deciding whether it is appropriate to remove an official even though that official meets the statutory threshold. The court found that the prime minister ought to have fired Deri and Pinchasi in light of the severity of the offenses included in their indictments. Allowing them to stay in office, the court maintained, would undermine public confidence in government. The court further held that the presumption of innocence does not preclude the removal of public officials based on reliable administrative evidence of criminal wrongdoing that is directly connected to their service in public office. According to the court, a criminal indictment imputing serious offenses to a public official would suffice for removal.

The 2001 version of Basic Law: The Government did not alter the provisions on the removal of government ministers and deputy ministers to reflect the rule set forth by the court. It does not explicitly address the implications of an indictment for their continued service. Yet, all the ministers who faced criminal action since Deri and Pinchsi voluntarily resigned. Moreover, an extended panel of the Supreme Court recently reaffirmed and applied Deri and Pinchasi. In Ometz v. Rochberger (2013), the Supreme Court ordered the removal of the mayors of two cities who had been indicted for corruption: the mayor of Nazareth Illit, Shimon Gapso, and the mayor of Ramat HaSharon, Yitzhak Rochberger. Similarly to Article 18(d) of Basic Law: The Government, the statute governing the tenure and election of mayors (the Tenure Statute) provides that a mayor would be automatically removed from office if he or she is convicted of a criminal offense with “moral turpitude,” and the conviction becomes final. At the same time, the statute empowers a city council to remove a mayor for behavior unbecoming the office. The Nazareth Illit city council voted not to remove Gapso from office despite the indictment. In Rochberger’s case, the council never voted on his removal.

The government’s brief in this case, filed on behalf of the minister of the interior and the attorney general, argued that although the statute only mandates the removal of a mayor after a criminal conviction, a city council may, and in some cases must, consider removal from office in light of evidence of impropriety even before the mayor is convicted of criminal wrongdoing. Its position essentially reflected the Deri and Pinchasi rationale. The Supreme Court agreed. Writing for the majority, then-Justice Miriam Naor found that the city councils’ failure to remove the mayors after they had been indicted with serious charges was “extremely unreasonable” and inconsistent with the principles of the rule of law, public trust in the institutions of local government, and “the general principles of democracy.” The majority opinion concluded that rule of law considerations outweighed the fact that the mayors were elected officials.

However, the court found no legal basis to bar the two mayors from seeking reelection in the municipal elections that were to take place shortly after the Supreme Court’s judgment had been issued. The court only held that if the two mayors get reelected, their respective city councils would be bound to consider their removal after the elections. In dissent, then-Chief Justice Asher Grunis wrote that while he believed that the two mayors should have resigned from office and ought to avoid seeking re-election, it was not for the court to intervene. “Since the elections are coming up,” he asserted, “there is no room for the Court to put itself in these local authorities’ voters’ place.” Both mayors were subsequently reelected but eventually removed as a result of their criminal trials. Regrettably, the outcome of those elections suggests that the court’s assertion that allowing indicted mayors to remain in office would undermine public trust in government may have been unfounded. It is noteworthy, however, that an amendment passed in light of Ometz created a mechanism for suspending mayors who had been indicted with criminal charges.

Deri, Pinchasi, Ometz and other similar decisions suggest that even if a statute requires a criminal conviction for an elected official to be automatically removed from office, it does not preclude discretionary removal in an earlier stage of the criminal proceedings. Similarly, one could argue that although the Basic Law only provides for the automatic removal of a sitting prime minister after his or her conviction in criminal court becomes final, it does not preclude removal following an indictment that meets a rather capaciously defined threshold of severity. Based on the police recommendations in cases 1000 and 2000, the offenses imputed to the prime minister would likely meet that threshold of severity. The Supreme Court may very well find, extending existing precedent, that it would be unreasonable for the prime minister to decide not to resign. After all, as odd as it may sound, the decision whether or not to resign also requires the exercise of the prime minister’s discretion as chief executive.

However, there are ample grounds for questioning the application of these precedents to the situation of a prime minister facing criminal charges. Deri, Pinchasi and Ometz were decided based on administrative law principles that apply to the prime minister as chief executive and to city councils as administrative authorities. The question of whether a prime minister can be removed in circumstances other than those explicitly provided for in the Basic Law implicates additional complex constitutional issues. It is one thing to hold that a city council’s failure to remove a mayor who is accused of criminal wrongdoing is unreasonable as a matter of administrative law. It is a completely different thing for the Supreme Court to challenge the failure of the national legislature, the Knesset, to act, should it fail to remove the prime minister if and when he is indicted. The stakes here are particularly high because the removal of the prime minister means the resignation of the entire government.

Furthermore, the provisions of the Basic Law governing the prime minister’s removal due to criminal wrongdoing seem to set the bar for removal higher than the constitutional and statutory provisions that address ministers, deputy ministers and mayors. This might serve as an additional basis for distinguishing the existing precedents in the case of the prime minister. Articles 23(b) and 27 of the Basic Law provide that a government minister or deputy minister convicted of an offense with “moral turpitude” would automatically be removed from office once the verdict is rendered. Unlike the prime minister, they cannot remain in office until the verdict becomes final. Article 20 of the Tenure Statute provides that a mayor would be automatically suspended if convicted with “moral turpitude” until the verdict becomes final. No such provision exists in the Basic Law with regard to the prime minister, which indicates that the Knesset intended to bestow a more robust constitutional protection from removal upon the prime minister.

The case law establishes that constitutional or statutory removal requirements are not exhaustive. However, the removal of the prime minister on grounds not explicitly provided for in the Basic Law has unique constitutional aspects that arguably distinguish the prime minister from other public officials. The Basic Law appears to leave it to the Knesset to decide whether or not to remove the prime minister after he is indicted and before his conviction becomes final. It thus seems to contemplate political, not legal, enforcement measures to relieve a prime minister of his duties for criminal wrongdoing.

This would create a tension that would be difficult to resolve if Netanyahu is indicted, declines to resign, and is not politically forced to resign. The possibility that the Supreme Court would effectively override the Knesset by ordering the removal of the prime minister, and, consequently, the entire government, clearly raises substantial difficulties from a democratic standpoint. At the same time, the prospect of a sitting prime minister standing criminal trial for corruption while in office should give pause to anyone who cares about the integrity of government, and about holding its leader to the highest standards of public behavior.