Prime Minister Benjamin Netanyahu has asked President Isaac Herzog to take an impossible step and grant him a preemptive pardon. Israeli law authorizes the president to pardon “offenders.”
In the past, in the well-known case challenging the pardon granted to Shin Bet (Israel Security Agency) operatives in the 1984 “Bus 300 Affair,” the High Court ruled, with a majority opinion, in favor of a broad interpretation of the term “offender,” to include even those who have not yet been indicted.
The justification lay in the fact that the Shin Bet agents admitted to having committed a criminal act and therefore, even in the absence of a formal conviction, they were, by their own admission, to be regarded as offenders.
The present case is entirely different: the prime minister does not admit to anything – he claims that there was nothing wrongful in his conduct – and thus, at the current stage of the trial, there is no basis for classifying him as an “offender.” If he is not an offender, the president lacks the authority to pardon him.
But beyond the legal dimension, even from a public perspective, the president cannot simply halt a criminal proceeding that has not yet run its course, just like that, without any verdict reached. The only conceivable justification for a pardon under the conditions requested by the prime minister is the desire to achieve social calm.
Still, it is reasonable to assume that granting clemency on such terms would have the opposite effect: the lava pent-up within half of the public would erupt with full force in all directions.
Recipe for the dismantling of shared Israeli civic foundation
The unilateral erasure of the most prominent criminal proceeding since the establishment of the state is a sure recipe for the continued dismantling of the Israeli common denominator: its shared civic foundation. The “Only Bibi” camp would take it as confirmation of its claim that the justice system fabricated a case against a sitting prime minister and would thereby find justification for continuing to batter its institutions. The “Anyone but Bibi” camp would pour into the streets in a fury with unforeseeable consequences. A president who does such a thing would be like Balaam in reverse: summoned to bless, yet ending up cursing.
Nevertheless, there is no doubt in my mind that action must be taken to bring this legal saga to a speedy conclusion. For years, I have supported a plea bargain under reasonable terms for both the prosecution and the prime minister. This springs from my belief that fully exhausting the legal process, in the present context, does not comport with the public interest or the interests of the State of Israel. Such a deal was on the table in the past, but it failed to ripen, and not solely because of the prime minister. A prosecutorial stance of yikov ha-din et ha-har – “let the law pierce the mountain” – has led us to the current state of prolonged arm-wrestling, to the detriment of us all.
I do not know what motivated the prime minister to formally request a pardon precisely at this time, but it appears to be his first public move signaling a willingness to end the trial without a verdict. He and his lawyers surely understand the legal difficulty posed by the lack of presidential authority and the enormous public difficulty in acceding to a pardon under the terms they have requested. Nonetheless, they submitted the request, apparently in the hope of opening a negotiation process between themselves and the president on the conditions under which clemency would be granted.
Such conditions must include two elements. First, an admission by the prime minister that his conduct was unlawful. This is not an insurmountable requirement: rhetorical skill and the flexibility of language can make it possible to formulate an admission by Netanyahu that would confer upon the president the authority to pardon him as an “offender” without branding a mark of Cain on the prime minister’s forehead in a way that would permanently tarnish his legacy.
The second element concerns the prime minister’s future in the public arena. After so many years in service to the nation, and in view of the biological processes we all undergo, it would seem that the time has come to set a horizon for the prime minister’s retirement. The “Anyone but Bibi” camp insists on his immediate departure, but one might propose that the retirement date be set for some point in the future, say in two years (if he is not replaced at the ballot box in the next elections). This is not an analytically neat or elegant solution, but it is a practical one.
Netanyahu would be given the opportunity to complete the historic moves he wishes to realize –stabilizing the state’s security and normalizing relations with its neighbors – yet he would do so within a predetermined window of time, after which he would retire.
This is a solution that humiliates neither side and affords each a degree of success. From a risk management perspective, each party emerges with at least a portion of its desires fulfilled.
We are fortunate that in the President’s Residence, there currently sits a thoughtful, politically and socially savvy jurist, who fully appreciates the need to reach a compromise. May his path be successful.
The writer is president of JPPI – the Jewish People Policy Institute – and a former dean of the Faculty of Law at Bar-Ilan University.