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Should Democracy Protect Netanyahu?

Similar to what is going on in the United States with President Trump, Israel is being pulled ever more quickly into a whirlwind of accusations and investigations surrounding Prime Minister Netanyahu, and open speculation about the rest of his tenure in office. While the investigations into Cases 1000 and 2000 (the first involving Netanyahu’s receipt of gifts from wealthy friends and acquaintances, the second involving Netanyahu’s alleged efforts to receive better coverage from Yediot Ahronot by suppressing circulation of rival newspaper Yisrael Hayom) have been ongoing for months, recent events have moved these investigations into a higher gear.

On Friday, Netanyahu’s former chief of staff and bureau chief Ari Harow agreed to become a state’s witness in the investigations of his former boss, which most observers view as a devastating blow to Netanyahu’s prospects at avoiding indictment. In addition, Israeli police have recommended that Netanyahu’s wife Sara be indicted on separate charges involving alleged misuse of official funds for personal benefit, and the Israeli think tank Molad announced its intention to file a libel lawsuit against the Netanyahus’ son Yair for a Facebook post he recently penned accusing the organization of being anti-Zionist and taking foreign funding.

In an effort to get ahead of any calls for him to resign should he be indicted, Netanyahu and Likud have been emphasizing that a large portion of the Israeli public continues to support his remaining in office. From a rally for the prime minister on Wednesday attended by thousands of Likud activists and cabinet ministers, to constant references to the popular support he enjoys from the nearly one million Israelis who voted for Likud in the last election, Netanyahu and his political allies have developed a clear message to the Israeli public in the face of the investigations: what matters is not Netanyahu’s legal troubles, but the will of the people. In this line of thinking, no matter what laws he is accused of breaking, Netanyahu should remain the prime minister of Israel since it is the voters who put him there and it is the voters who continue to support him. In other words, democracy itself protects Netanyahu, and forcing him to step down if he is indicted would be anti-democratic.

Arguments over the boundaries and requirements of democracy are not new to Israel. In recent years it seems as though nearly every week brings with it another debate over whether or not some action supported by the prime minister, the Knesset, or the High Court is anti-democratic. The controversies over Knesset bills attempting to limit speech or the purview of the judiciary, the nation-state bill and the status of Arabic, and the ongoing debate over how to treat terrorists and those who kill them, are in essence about this fundamental issue. Unsurprisingly and in a way that is not unique to Israel, the political camp in power argues that democracy means respecting the will of the people as interpreted by whom they voted for, and that it gives the government wide leeway to do what it wants until the people decide to vote it out of power. On the other side, the opposition argues that democracy is not just about voting, and that elections do not confer unlimited power but that there is a set of rights and norms that must be respected.

As this debate over Netanyahu’s future takes center stage in Israel, it is critical to emphasize that democracy is about more than just elections. Voting is a necessary but not sufficient component, and it has to be joined with the rule of law, routinized accountability, checks and balances, and guarantee of basic rights. It is easy to see why a country like Iran, where there is voting but not these other components, is not a democracy; it is often harder to see the problem when all of the variables are present but the government asserts that winning elections means that it is answerable only to the people and not to other institutions.

Winning the most votes is not a shield against consequences for bad or illegal decisions, and electoral victories do not inoculate one from having to answer to the law. What distinguishes a constitutional democracy – or in this case, a Basic Law democracy – most critically from a non-democracy is not holding a free and fair election, but having a government of laws rather than one of men. Mob rule protects malfeasance because someone is popular. Democracy does not. This was the case for the lowliest private who criminally shot an incapacitated terrorist on the ground, and it should be the case for the highest elected official in the land.

I have mixed feelings on whether or not Netanyahu can or should serve as prime minister if he is criminally indicted. On the one hand, it sets a terrible example to have a prime minister in office who is being tried for abusing the power of that office. There is also the inconvenient fact of history that Netanyahu was the leader of the pack in demanding that Ehud Olmert resign upon being indicted, vociferously insisting that a prime minister in that position cannot reasonably fulfill the duties of his office. On the other hand, Israeli law does not require the prime minister to resign if indicted, or even if convicted (the Knesset may remove him for a conviction of a crime of moral turpitude, but does not have to), and there will be terrible costs to the Israeli political system and how citizens view its legitimacy to have successive prime ministers resign for criminal behavior.

But wherever one comes down in answering this question, the notion that Netanyahu stepping down while under indictment would be an effort to overturn the results of an election by other means is abject nonsense. Democratic principles in no way protect Netanyahu in this instance, and suggesting otherwise betrays a faulty understanding of what democracy means and entails. If Netanyahu’s actions warrant an indictment that is recommended by the police and accepted by the attorney-general whom he appointed, appealing to the fact that voters put him there should not be a universal get out of jail free – or stay in office indefinitely – card.

This article was originally posted in Ottomans and Zionists.