Rosner’s Domain: Is Plea Bargain for Netanyahu Acceptable?

What is the purpose of a legal system? What does it exist for? This is a question worth pondering, as we consider the possibility of Israel’s former Prime Minister, Benjamin Netanyahu, walking away with a plea bargain in his corruption trial. If you haven’t heard, that’s an option on which Israel was fixated, for good reason, in the past week. The Attorney General finishes his term at the end of the month, and that’s the tight timeframe to close a quick and dramatic deal. The terms are pretty much known: conviction for misdemeanors, no prison, and Netanyahu leaving the public arena for at least seven years, and likely forever.  

It’s an option to which an almost uniform chorus of commentators, writers and activists reacted with strong disapproval. A top lawyer said it was against the public interest. Former PM Ehud Barak said it will be a disgrace. A Netanyahu supporter began raising donations so that Netanyahu will not have to fold. A journalist cried that the damage will be “catastrophic.” A legal analyst announced that it would be illegal. “This is a failure,” warned a veteran TV anchor. This would be a “terrible” deal, her colleague warned. 

A large and uniform choir. A loud chorus. The public (see graph) is also displeased. 

Then again, what is the purpose of the justice system? Let’s start with what is certainly not its purpose: to satisfy the lust of journalists, commentators and observers for a good story with a dramatic ending. True, if this was literature, a long trial, ending in a verdict, acquittal or conviction, would be the way to go. True, as citizens we would be more fulfilled if there is an exclamation point at the end of this saga—the possibility of calling the defendant “guilty!” or the judge “evil!” or the attorney “negligent!” or the prosecution “brave!” or something like that.

The purpose of a justice system is not to satisfy our desire for a good narrative. Its purpose is to serve a society that is subject to its laws and institutions.

But the purpose of a justice system is not to satisfy our desire for a good narrative. Its purpose is to serve a society that is subject to its laws and institutions. Its purpose is to solve problems, without creating even larger problems. One way to serve society is to convince everybody that justice has been done. And the opponents of the deal are correct: If Netanyahu signs a plea deal, there will be no such sense. We will never know whether the prosecution underestimated or exaggerated Netanyahu’s supposed sins. We will never know if Netanyahu was charged because he was guilty or because he was annoying. 

If there is a plea deal (and as I write this column on Monday, we still don’t know how this drama ends), a sudden quiet will follow. Strange silence. Like an abruptly halted thriller. 

Hey, what’s going on? Does the protagonist defeat the aliens, or is the planet destroyed? 

Neither. A deal was reached. The screenwriter and director decided to stop here. 

Hey, but we stood in line, paid for tickets, bit our nails! 

Sorry, the screenwriter and director decided to stop. And please do not forget your jackets on the way out. 

What is the purpose of a justice system? The purpose of Netanyahu’s trial is twofold: to prevent him from continuing a corrupt activity (assuming he is guilty), and to deter the next corrupt politician. The plea bargain under discussion will solve the first problem, as it includes the mandatory absence from public life. So, the question still unresolved is the one of deterrence, and that’s a question that should be debated calmly. 

Those outraged at the possibility of a plea deal put the credibility of the justice system at the forefront of their concerns. They argue that a deal is going to prove Netanyahu’s claim, that the goal of the trial was political to begin with—to keep him away. They argue that if there is a deal, the public may be under the impression that there really was not enough proof for conviction. They argue that if there is a deal, Netanyahu will be able to evade the punishment he deserves. 

These are not empty claims. Such damages may indeed materialize. But they are partial claims. In addition to them, one must also consider the damages that may materialize if there is no plea deal: the public and social tensions surrounding the trial; Netanyahu’s ability to abuse his power, as opposition leader and still a potential prime minister; the ongoing paralysis of the political system. It is easy to explain what is wrong with the possibility of a plea bargain, but it’s unserious to do it while forgetting to explain what could go wrong with the counter option. 

Does all this mean that a plea bargain is necessarily the only reasonable way out? No, that’s not what it means. But it does mean there is no reason for a uniform chorus (with very few exceptions). There is no reason to assume that those working to promote a plea bargain are idiots. 

Most importantly, there is no reason to morally delegitimize those who support a bargain. Support for it is not support of “corrupt leaders,” nor for “the rule of the elites.” Support for it is a merely a compromise, albeit a lukewarm compromise. It is hard to sell because no one comes out of it satisfied. And yet, a compromise is often the right choice.

Something I wrote in Hebrew

The armed terrorist attack in a synagogue in Texas did not end peacefully. Repeat: did not end in peace. It is true that the hostages were released unharmed, and the kidnapper did not leave the scene alive. It is also true that the security forces functioned well. But let there be no doubt: This Sabbath drama did not end without casualties. The casualties are us. The attack will resonate in very many synagogues for a very long time. At best, it will only affect the conduct of Jews in America. They will be a little more careful, and may think twice, before going to a synagogue. At worst, it will spawn copycats and recurring events. So relative to what might have happened, the incident ended fine. But to say it had “ended without harm” would be a great exaggeration. 

A week’s numbers

The public, right and left, opposes a plea bargain for Netanyahu.

A reader’s response:

Dina Azulai wrote: “Next time you write about the Chief Rabbi, please explain why we still need two of them, are we not one people?”

Shmuel Rosner is senior political editor. For more analysis of Israeli and international politics, visit Rosner’s Domain at jewishjournal.com/rosnersdomain.