Several weeks ago, a recording of a conversation between Israeli Prime Minister Benjamin Netanyahu and the publisher of Israel's Yediot Ahronoth newspaper, Noni Mozes, was released by Channel 13 News.
Investigators claim that the clip, one of many recordings being used as evidence in Case 2000 – one of three cases in which Israel's Attorney General Avichai Mendelblit may soon issue formal indictments against the prime minister – shows Netanyahu discussing favorable coverage in Yedioth in exchange for legislation.
Follow Israel Hayom on Facebook and Twitter
A steady stream of leaks from all three cases have been gifted to the media for the purpose of souring much of Israel's political establishment and public on Netanyahu's otherwise intractable reign as Israel's longest-serving prime minister.
Yet according to a high-profile international legal team that rushed to Netanyahu's defense during recent pre-indictment hearings, Netanyahu's attempts to influence the media are standard practice for politicians and not criminal in nature, even if political favors were granted in return for positive coverage.
Furthermore, if criminal charges are ultimately filed against him for trading such favors for coverage, they argued, it would represent an unimpressive first for any society operating with a free press.
Professor Avi Bell, a member of the Faculty of Law at Bar-Ilan University in Ramat Gan and the University of San Diego School of Law, and one of the lawyers who submitted the brief challenging the tentative charges against Netanyahu, told JNS that "prosecuting a bribery charge in these cases is a mistake. Pursuing these charges is unprecedented in the democratic world, dangerous to the fabric of Israeli democracy and ill-advised."
The brief, authored by Bell as well as Alan Dershowitz, Nathan Lewin, Richard Heideman and Joseph Tipograph, and presented to Mendelblit and state prosecutors during the pre-indictment hearings by Bell and Lewin, insists that positive media coverage can never constitute a bribe.
"There is no case we can find anywhere in the democratic world where positive coverage has ever been considered a potential 'bribe,'" said Bell.
The brief submitted by Netanyahu's attorneys demonstrates that "media empires … routinely exchange favorable coverage for official acts."
The document presents a litany of examples whereby media moguls such as William Randolph Hearst and Joseph Pulitzer have implicitly traded positive coverage for political favors that include the altering of government policies and regulations that financially benefited the media owners.
Specifically, the brief references multiple examples negotiated decades apart between Rupert Murdoch, and British premiers Margaret Thatcher and Tony Blair.
Particularly in today's age of polarized media, it is literally the business of outlets to provide positive coverage to those politicians or candidates they like, while providing negative coverage of those politicians they don't. And it is the job of politicians and candidates to secure the best possible coverage they can, while ensuring that their political rivals receive the worst coverage possible.
Politicians consistently lobby media outlets with whatever they have at their disposal to gain improved coverage. They will often provide scoops and otherwise hard-to-get access to reporters with the understanding that coverage will be in their favor. And media outlets are happy to play along, even actively courting such favors. These are simply the often-not-so-pretty operating procedures of a for-profit free press.
Bell told JNS that "if bargains for positive coverage between public officials and media figures can be punished as bribes, then every report about a matter of public interest is potentially the basis of a bribery charge, and every interaction between a journalist and a public official is potentially relevant evidence of a crime."
Furthermore, even the lesser misdemeanor charge of breach of trust may be inappropriate, he said.
"Treating bargaining between public officials and media figures over positive coverage as a criminal transaction is a danger to free speech," Bell said, "whether that transaction is called the crime of bribery or breach of trust. The bribery-related charges – and this includes the claim in Case 2000 that the prime minister committed a 'breach of trust' by failing to react properly to a proposed 'bribe' of positive coverage – go to the very heart of freedom of speech and freedom of the press."
The result of treating media coverage as a bribe, according to Netanyahu's legal team, would be the effective "chilling of free speech," whereby journalists would refrain from publishing specific types of coverage for fear of potential retroactive prosecution.
According to the team's brief, this "chilling effect" has significant precedent in British and American law and has been thoroughly examined by the European Court of Human Rights, which has ruled that this form of self-censorship "works to the detriment of society as a whole."
"All journalists who report on public affairs will have to worry about finding themselves subject to criminal investigations and arrest," Bell noted, adding that in such a scenario "almost all reporting could potentially be considered a bribe."
This, Bell explains, would create an unprecedented reality whereby "police and prosecutors will become the final arbiters of what can be reported, rather than the free press." In scenes that would resemble those common in dictatorial regimes, "prosecutors and police would have an enormous power to play favorites," Bell said, which could be used to "intimidate and silence" political opponents.
"It's a nightmare scenario that fits regimes like Turkey and China, and has always been rejected by democratic states outside Israel," Bell stressed.
Complicating the case for Netanyahu, said Bell, is that Israeli bribery law is "unusually strict."
Bell explained that in most of the democratic world, "a bribe is an illicit payment in exchange for a favorable official act that gives a benefit to the bribe payer." In Israel, he noted, "almost none of that is necessary. If the bribe payer hopes to get a benefit in the future, but doesn't have anything specific in mind, it can still be a bribe."
Furthermore, he added, "there doesn't have to be a benefit to the bribe payer. If the bribe payer gets exactly the same services he or she would have received without the bribe, the criminal law still considers it a bribe."
Bell suggested that the combination of this overly strict interpretation of bribery and positive coverage potentially being classified as bribery was "particularly dangerous."
"Prosecutors could put journalists in jail for seven years as long as they could prove that their coverage helped someone and the judge inferred that the journalist had an expectation of benefiting," said Bell. "And public officials could be convicted any time they delivered an official service of any kind to someone who wrote a nice story about them."
Meanwhile, the requirements for proving or disproving the lesser, misdemeanor charge of breach of trust is very much open to interpretation.
"One of the real problems here," Bell said, "is that – as many Israeli judges have noted – a breach of trust is a crime without a clear definition, so what looks like a breach of trust depends very much on the judge."
Bell noted that "it is possible, of course, for there to be a breach of trust in some other aspect of the cases, if, for example, Netanyahu acted improperly aside from the alleged bargain for positive coverage. But no such allegation appears in the interim charge sheet, so there doesn't seem to be a case of breach of trust in either case 2,000 or 4,000 [in which Netanyahu allegedly struck a deal with another media organization]."
The irony of the cases regarding Netanyahu's attempts to manipulate the media is that the very same investigators and prosecution attempting to hold him accountable may have themselves been manipulating the press, and through it public opinion.
By leaking what should otherwise be legally protected evidence, referendums on Netanyahu's conduct are simultaneously taking place within the offices of the attorney general and state prosecutors, as well as at the ballot box and the Knesset during protracted rounds of parliamentary coalition negotiations.
Yet if the same stringent theories are applied to the prosecution's manipulation of the media as are being applied to Netanyahu's, one could easily argue that the leaks themselves are bribes. Such leaks constitute immeasurable favors to the media outlets who receive them, in the form of readership and ratings, which provide direct monetary benefit to media owners.
"According to the prosecution's theory that helpful news coverage is a bribe, all the leaks are potential bribes," said Bell, "and the only way to know if they are lawful is to haul in all the relevant journalists and investigators, and interrogate them about their motives."
So why aren't the leaks being restricted or even prosecuted? Bell noted that ironically, "Several years ago, legislation was proposed that would have made the illegality of such leaks clear. However, the proposed legislation was controversial for the obvious reason that it would have punished speech and would harm free speech."
This, Bell contended, further illustrated the danger of creating such a broad crime by allowing positive coverage to be considered bribery.
"The lack of prosecutorial attention to the leaks as bribes or to the other media bargains, such as between former MK Eitan Cabel and Mozes in Case 2,000, as bribes shows how dangerous it is to create a crime that can potentially attack everyone, but will in practice only be used against a disfavored few," he said.
Yet Bell doesn't suggest that the leaks be investigated or prosecuted. "I don't think the right response to unfair leaks is to make even more speech subject to criminal penalty," he said.
"It's quite clear that whatever the flaws in politician-media relationships in Israel today, there's nothing that would be as devastating to freedom of speech as giving the police power to inspect the motives of all news coverage that helps or hurts a public figure," said Bell. "The damage to freedom of speech and, more generally, to a free society, would be incalculable."
It appears that the case made by Bell and Netanyahu's international legal team may yet have a significant impact on the charges to be leveled in the coming weeks by the attorney general.
The attorney general is expected to announce whether or not he intends to indict Netanyahu in the coming weeks, possibly during the ongoing coalition negotiating period now led by Netanyahu's challenger, Blue and White leader Benny Gantz.
If charges are dropped or reduced, Netanyahu's chances of remaining in power may improve. Yet the damage to his reputation and tenure as prime minister due to an unprecedented legal process may already be irreversible.
Reprinted with permission from JNS.org
Alex Traiman is managing director and Jerusalem Bureau Chief of Jewish News Syndicate.
