By Haggai Porat
Shortly after the U.S. Senate acquitted President Clinton in 1999, he apologized for triggering the impeachment process. President Trump, in contrast, declared that his acquittal called for “a day of celebration,” and immediately started firing White House employees who had testified before the House of Representatives. In 2008, then-Israeli Prime Minister Olmert resigned shortly after the police recommended that he should be indicted on corruption charges. In contrast, after Prime Minister Netanyahu was indicted on multiple bribery charges, he infamously said that Israeli citizens should “investigate the investigators,” and even with the trial approaching, Netanyahu shows no signs of considering resignation. Instead, he is currently fiercely promoting legislation to amend several of the Israeli Constitutional Basic Laws in ways that will allow him to remain in office for years to come. These troubling examples illustrate how the resurgence of populism, coupled with increasing polarization, are making it easier for corrupt politicians to evade accountability, even in countries with functional legal and judicial systems. Deep political divisions and strong partisan loyalty are not new, but in the past, it seems there was a degree of overlapping consensus on minimum standards of integrity and propriety, and enough citizens were willing to enforce these standards on a non-partisan basis that leaders would be restrained by political checks—enforced through things like elections and internal party discipline—that could complement judicial processes.
Moreover, leaders like Trump and Netanyahu have acted aggressively to undermine the institutions of justice in order to protect themselves. Both leaders have cavalierly attacked the professionalism and integrity of their country’s law enforcement agencies by suggesting that investigations targeting the leader or his associates are politically motivated “witch hunts.” And both have taken more concrete action to undermine the ordinary operation of the machinery of justice. In the U.S., after his Senate trial acquittal, President Trump intervened to help allies who had been found guilty in cases related to investigations of impropriety by Trump’s 2016 campaign. For example, Trump’s Attorney General ordered the Department of Justice to seek a more lenient sentence for Trump’s former consultant Roger Stone, and Trump pardoned or commuted the sentences of several others in a short and unorthodox process. Netanyahu has been even more aggressive in trying to weaken legal institutions in order to protect himself. After being indicted, Netanyahu fired the Minister of Justice and appointed in her place a low-ranking member of his party with no prior ministerial experience. The new Minister’s first action was to appoint a new Solicitor General—the immediate superior of the prosecution team in Netanyahu’s case–through an irregular process and against the recommendation of the non-partisan Attorney General. (Due to the political deadlock, the Minister is part of a caretaker government and could therefore appoint an interim Solicitor General without the approval of the public committee that the law would otherwise require.) On the eve of Israel’s third round of elections, the new Solicitor General decided—against the opinion of the Attorney General and many others—to launch a police investigation into a firm in which Netanyahu’s chief rival Benny Gantz served as a director (obscuring the fact that Gantz himself is not a suspect). More recently, the Minister of Justice gave the unprecedented order to freeze all non-urgent judicial procedures due to the Covid-19 outbreak—a move that indefinitely postpones Netanyahu’s trial. While the Covid-19 outbreak has disrupted or delayed judicial proceedings in many countries, there was no expert opinion supporting such drastic measures in Israel, especially given that Israel has more per capita testing and ventilators capacity than nearly any country on earth. Even now, when newly detected cases are close to zero, a new date for the trial has yet to be set. Moreover, to avoid a fourth round of elections, given the continued deadlock, Netanyahu is now fiercely and unprecedently promoting legislative amendments to Israel’s Constitutional Basic Laws that would allow him to hold onto office for years to come.
When professional, and traditionally non-partisan, law enforcement agencies find themselves under attack by corrupt populists, these agencies often do not respond, presumably due to the belief that the only way to maintain integrity, legitimacy, and professionalism in the face of such attacks is to refrain from commenting on unfounded claims meant to disparage state attorneys and police investigators. There is much to be said for that approach, but at the same time, the institutions of justice can and should do more to counter the attempts of corrupt populists to undermine those institutions in order to remain in power.
- First, investigators, prosecutors, and courts should try to act more quickly. Conducting investigations and trials in a speedier fashion when the suspect remains in office can help limit or reduce the harm done along the way. In the U.S., the House of Representatives probably should not have waited a month after the impeachment vote before delivering the articles of impeachment to the Senate. Similarly, Israel’s Chief of Police and Attorney General could probably have investigated and indicted Netanyahu faster than the four years it took; if they had done so, the indictment might have issued several months before the first elections, rather than just a few weeks afterward. Moving forward, assuming the Covid-19 postponement eventually lifts, the court presiding over Netanyahu’s trial should use its broad discretion over the criminal procedure to minimize Netanyahu’s attempts to prolong it.
- Second, senior law enforcement officials should be more willing to communicate with the public and to try to shape public opinion. While keeping in mind the importance of restraint and professionalism, senior officials like Israel’s Attorney General should consider using press releases, press conferences, and social media much more extensively than is done today, in order to convey accessible factual information and counter the attempts of Netanyahu’s spokespeople and political followers to sway the public opinion through distortions and outright misrepresentations. In the U.S., while such statements are rare, there are some examples, such as Chief Justice Robert’s statement, in response to President Trump disparaging the judge who issued an adverse ruling as an “Obama judge,” that “We do not have Obama judges or Trump judges, Bush judges or Clinton judges, what we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.”
- Third, prosecutors and courts should be more aggressive about using obstruction of justice and contempt of court charges. In Israel, the Attorney General can and should consider enforcing charges of obstruction of justice and contempt of court even when the misconduct in question is relatively minor compared to the main charges. Such remedies should be invoked swiftly in cases involving witness intimidation and defamation, the superfluous summoning of witnesses, tactical requests for delaying court sessions with no evidence-backed reasons, and others. In Israel, such infractions are typically not punished, especially in high-profile cases, but prosecuting them is of particular importance in corruption cases involving politicians who are more likely to benefit from engaging in this type of behavior. Prosecuting these charges in a speedy interim procedure is likely to be much more effective in deterring this type of behavior and preventing some of the collateral harm that it facilitates.
One of the troubling phenomena resulting from populism and polarization is the spectacle of corrupt leaders going after their own government’s law institutions of justice. These institutions must adjust to the new reality and learn to fight back—not by stooping to the populists’ level, but by using the available legitimate tools to convey reliable information to the public and to administer swifter and more effective justice against sitting politicians.
This blog was originally published on GAB | The Global Anticorruption Blog Law, Social Science, and Policy and was republished with permission.