Two inconclusive elections within five months have left Israel in an unprecedented and confusing position. Attorney General Avichai Mandelblit’s decision on 21 November 2019 to indict Prime Minister Benjamin Netanyahu on charges of bribery, fraud and breach of trust have further confused matters. With almost no other topic under discussion in the country, the situation can be divided into three key aspects: legal, political and moral.
Regarding the legal aspect, the major question has been whether Netanyahu should or indeed must resign now that he has been indicted. The law may seem clear: a minister who has been indicted must resign. However, there is no such stipulation for a prime minister. The reason, according to most interpretations, is a practical one: if a prime minister were to resign, this would bring down the government and make a new coalition or elections necessary. Therefore, a sitting prime minister has automatic immunity.
The issue in this case is that Netanyahu is not an elected prime minister whose resignation would bring down the government. In fact, after two elections in March and September, he has been unable to form a coalition government and is currently serving in a caretaker role. At least, that is one interpretation. It is expected that the Supreme Court will be petitioned to intervene and determine the valid interpretation. In the meantime, Mandelblit has adhered to the simplest interpretation of the law, determining that Netanyahu may remain in office.
Pending a Supreme Court ruling, immunity for the prime minister could, nonetheless, come from another source. Members of the Knesset, the Israeli parliament, including the prime minister, can ask the Knesset to grant immunity. This has been done several times in the past, with the Knesset granting, or denying, immunity. The problem is that the Knesset body that initiates such a procedure is the House Committee. Since there is no coalition government, the Knesset committees, including the House Committee, cannot be formed. It will likely be months before they can be.
The political aspect of the situation appears to be simpler. The other main party, Blue and White, has also failed to cobble together a government. In both elections, Blue and White pushed for a national unity government – with Netanyahu’s Likud party – but not if Likud’s leader were indicted.
There were other conditions for the coalition too, linked to a rotating prime ministership and who would serve first, as well as the president’s proposal that a unity government be formed, and that Netanyahu declare temporary indisposition if indicted. Benny Gantz, Blue and White’s leader, rejected this proposal. However, if someone other than Netanyahu were to become the leader of Likud, theoretically the way would be clear for a unity government composed of the two largest parties (and presumably also the so-called ‘kingmaker’ Avigdor Lieberman of the Yisrael Beiteinu party, who has been withholding his support for either party in order to promote the unity idea, and, conceivably, his own position).
Thus, on the political level there are two issues. The first is whether Likud will hold an internal vote for a new leader. Former minister Gideon Saar has called for such a vote. No other contenders have come forward and, so far, the party has remained staunchly behind Netanyahu. The second issue is Saar’s contention that for Likud to win an election, it must have a new leader. Announcing his decision to run, Saar argued that Netanyahu has failed twice this year to form a government. Now that he has been indicted, there is even less of a chance he could form a government. In other words, if Likudniks want to stay in power and perhaps even keep their Knesset seats, Netanyahu has to go.
Few in the right wing of the political spectrum have engaged on the morality aspect. Blue and White and the left-wing parties have stated that, morally, a prime minister indicted for bribery, fraud and breach of trust should resign. Yet the path chosen by Netanyahu, his spokespeople and supporters has been to accuse his accusers of fabricating a case (“sewing a suit specifically for him”).
In a dramatic appearance an hour after his indictment was announced, Netanyahu called for an investigation of the investigators – from the Prosecutor’s Office down to the police. Although pressed by journalists and others, the only leading right-wing figure to address morality is Saar, referring in his opening comments to the fact that Netanyahu’s challenge to democracy and the rule of law was dangerous and wrong.
Organizing what they hope will be a massive rally of support for Netanyahu in Tel Aviv, leading Likud figures criticized Saar for abandoning their leader. One journalist even characterized this behaviour as akin to Stockholm syndrome, with some party loyalists willing, at most, to say the matter will be decided in court and that a person is innocent until proven guilty.
How all this will turn out is anyone’s guess. The political aspect, that is a vote to replace Netanyahu as Likud’s leader that would pave the way for a unity government, is a possibility, if an unlikely one. The Knesset still has almost three weeks to find the 61 seats needed to form a governing coalition, so there is time for Netanyahu to be replaced in his own party or another Knesset member to be designated to form a government.
That said, there are no signs there will be a vote in Likud or that such a vote would bring in someone other than Netanyahu. And even if Netanyahu were re-elected as head of Likud, there might still be a legal (and moral) question about an indicted person forming a government. That too might have to be decided by the Supreme Court. It may not get that far, however, because without Blue and White or Yisrael Beiteinu, Netanyahu cannot form a government, and so far both parties have said they will not agree to govern with Netanyahu.
Presumably, a third election in March 2020 would not change much, as Saar has argued. A good deal of political, and even legal, manoeuvring over the next few weeks is to be expected. Indeed, the process of granting or denying immunity in the Knesset, Supreme Court rulings and the like could make it many months before the cases against Netanyahu can even come to trial. The trials themselves could also take months, even years. As such, Netanyahu may be around as prime minister for some time to come.