If Prime Minister Benjamin Netanyahu emerges from the election with a right-wing majority, buttressed by Yamina’s Naftali Bennett, and forms a new coalition, what will happen to his criminal trial with witnesses set for April 5?
There are a variety of options at Netanyahu’s disposal.
They include long-term immunity, French-law-style temporary immunity, firing Attorney-General Avichai Mandelblit, appointing a new state attorney who is favorable to him and appointing a new attorney-general when Mandelblit’s six-year term ends in 11 months. If all else fails, he could seek a pardon from outgoing President Reuven Rivlin or his successor in July.
Long-term immunity would require a Knesset law granting Netanyahu retroactive permanent immunity for the actions for which he is on trial, based on the idea that they related to his official duties for the state.
French-law-style temporary immunity would require a Knesset law freezing his trial until he leaves office, based on the idea that a prime minister or president should not be distracted from his official duties for anything but violent crimes.
Either law would likely need to be passed as a basic law to avoid intervention by the High Court of Justice.
Alternatively, a new Circumvention Law might be required to allow the Knesset to override specific High Court vetoes related to these and other laws.
While not impossible, neither of these laws are Netanyahu’s most likely path.
Bennett himself, and others in his party, such as Ayelet Shaked, have balked at the idea of retroactive immunity, even as they have supported Netanyahu’s right to continue as prime minister while on trial.
In addition, such actions could cost Netanyahu political support even among some of his more stalwart supporters on the Right who believe in his innocence but would rather see him prove this in court.
Further, such “nuclear options” – given that the trial started last May, has held numerous pretrial hearings and will have started calling witnesses before any new coalition is formed (new coalitions even in the best case usually take more than a month) – could lead to an unprecedented judicial response.
Where executive branches have taken such actions in other countries, some judicial branches have gone on full strike, bringing any ability to handle legal issues to a halt.
But there are more moderate ways for Netanyahu to try to improve his fortunes, even as the trial goes forward.
Firing Mandelblit is unlikely, and it would not achieve much. His key role was in November 2019 when he decided to indict the prime minister.
After that, the fate of Netanyahu moved into the hands of the courts.
But there has not been a permanent state attorney since December 2019 because Netanyahu and Blue and White have fought over who should choose the winning candidate. If Netanyahu has a solidly right-wing coalition, he could force through his preference.
Moreover, Netanyahu need not fire Mandelblit, given that the attorney-general’s term expires next February.
With Netanyahu’s trial expected to last another one to three years, all he needs is to have his handpicked attorney-general or state attorney, or both, in place by April 2022 at the earliest, or whenever the trial gets close to a verdict.
As long as no verdict is pronounced, any new Netanyahu pick for the two top legal roles could reach a lenient plea bargain with him, along the lines of retiring as prime minister for no jail time.
In an even more extreme case, there could be a Sara Netanyahu-style plea deal (see the Prepared Food Affair) that drops jail time and lets him remain in power as long as he takes public responsibility for a minor criminal charge.
Other options include playing for time until he can engineer a pardon from Rivlin or from the next president, who will take office in July. He could condition his support for the next president on a promise for a pardon.
Netanyahu will not necessarily be out of the woods even if he gets to form the next government. But he will have many better options than if he loses and an anti-Netanyahu government ensures that none of these options are available to him.