By Edwin Black
“Seeking favorable publicity or offering it to a candidate or public official simply cannot be a crime in a democratic nation that reveres a free press.” This was the clear warning in the well-documented conclusion of the “Legal Memorandum,” submitted in October 2019 to Israel’s Attorney General Avichai Mandelblit, opposing the prosecution of Prime Minister Benjamin Netanyahu for media bribery. The 22-page brief, studiously authored in mid-September in Jerusalem by famed American constitutional and Jewish rights attorney Nathan Lewin, was co-signed by four eminent attorneys: Alan M. Dershowitz, Abraham Bell, Joseph Tipograph, and Richard D. Heideman.
The brief failed to convince Mandelblit.
Of course, it failed. The allegations against Netanyahu are so beyond the laws of journalistic and democratic physics that the arguments can only partially dampen a determined prosecutor who has already made up his mind. It would be easier to rationalize why an apple could levitate up to the tree and instead of fall from it, thus confounding the laws of gravity. Little in the Lewin brief persuaded Mandelblit because the charge against Netanyahu and the apple rising instead of falling are both unthinkable. A rational rebuttal cannot overcome an irrational argument. Hence, the most salient and powerful parts of the memo were the signatures, and the attendant shimmer of those names.
Israel veering off the democracy road is especially troubling for the concept of democracy itself as well as the very notion of western justice and free press. Hence, the issue of Netanyahu’s innocence or guilt is not anywhere as important as the claim that his high-handed dealings with media moguls constituted not just a disheartening act but also a prosecutable crime. Doing the right thing matters so profoundly for Israel because justice and democracy are the fiery alter egos of the nation itself.
The very seeds of democracy and indeed the quintessence of justice and equality were first sown in the harsh, sun-blinded desert en route to the Promised Land. The holy books tell us that Moses led the Children of Israel out of bondage and injustice to create a new social fabric that wove together equality, liberty, and law. No longer was life to be lived based on the strong over the weak, the powerful over the powerless, but on fairness. When manna was provided to the starving Israelites in the desert, they were instructed as equals “Each one is to gather as much as he needs” but not more (so it is written in Exodus 16:18). No tent would be favored.
The whim and tyranny of Pharaohs was to be replaced with God’s constitution, embodied in the Ten Commandments. Statutes arising from those precepts were enumerated in the Books of Moses. He judged according to God’s law and the statutes therein. Moses explained (so it is written in Exodus 18:15-16), that when people “have a dispute, it is brought to me, and I decide between the parties and inform them of God’s decrees and instructions.” But one day, his father-in-law, Jethro (so it is written in Exodus 18:18-23), told Moses to ease his burden by appointing judges from the best men.
In Deuteronomy Chapter 17 Verse 18-20, the enduring principles of a judicial system are set forth. The system of fairness and equality under law created in the desert was to become a light unto the nations. Jews were enjoined in Leviticus 25:10 to “proclaim liberty throughout the land to all its inhabitants.”
In modern times, the yearning to be free and quest for justice was re-ignited in Philadelphia when the Founding Fathers adopted the Biblical notion of liberty and continuously relied upon Old Testament teachings. On their great Liberty Bell, still on display, they emblazoned that self-same Mosaic injunction from Leviticus 25:10, “proclaim liberty throughout the land to all its inhabitants.” The American system was not to be regal or dictatorial; it was to be “federal,” a word derived from the Latin word for “covenant,” that is, God’s Covenant.
The great American experiment in democracy created a living, breathing social organism that interlaced its citizens with its leadership. Every biologist knows the indispensable requirement for every organism is the membrane that separates and yet connects the inner essence of life to the outside controlling elements. In a living, breathing democracy, the media make up that necessary permeable interface between the people and those who govern. The media is called upon to exercise a seven-fold mandate: to question, to accuse, to defend, to remember, to predict, to inform, and to entertain.
Those who know the media know it is controlled by both scoundrels and saints, and every permutation in between. Like society itself, the media is imperfect and fallible. Those who know governments know they are controlled by scoundrels and saints, and every permutation in between. Government—like society itself—is imperfect and fallible. Politicians wield power; it is their oxygen. They are heavy breathers; and no matter how much oxygen they breathe, more is craved. Often, they take yours.
History teaches that the mere printing of a newspaper does not make it a sinew of a free and fair media. Stalin proved that with the Soviet newspaper Pravda, which means “truth,” but which was often full of mere Orwellian doublespeak. Nazi Minister of Propaganda Josef Goebbels proved the same and committed suicide before answering at Nuremberg for the war crime of genocidal complicity by incitement. Ford’s Dearborn Independent was a font of falsity.
In any genuine democracy, the extinguisher and nourisher of all media is the free mind and the free marketplace. Eventually, the people form their own conclusions as they abandon and flock to various newspapers as well as digital outlets. Without people’s attention, the media becomes a distant tree falling in the woods. If no one hears it, did it really happen?
Corruption, mismanagement, duplicity, and bias in media has a way of emerging from behind the curtain. In prior times, it was a long process, such as when William Randolph Hearst fomented a needless American military adventure in Cuba with his infamous assurance, “You furnish the pictures and I’ll furnish the war.” Nowadays, corrupt, conniving media can be exposed in the twinkling of an eye and the speed of a Send button.
Drilling into the Netanyahu case, the prime minister is accused of asking for something of value—better coverage—in exchange for official acts or the perception of official acts. He only asked for truthful coverage—whether deemed “favorable” is in the eyes of the beholder.
American jurisprudence has already expressed itself on criminalizing punishing truth. In a case of unrelated media disclosure, Smith vs Daily Mail, the U.S. Supreme Court ruled, “Our recent decisions demonstrate that state action to punish the publication of truthful information seldom can satisfy constitutional standards.”
Attorney Lewin recently revisited the topic in an editorial asking whether “a pending criminal charge can be grounds for disqualification for office under American Law?” An unexpected Knesset majority opposing Netanyahu is now trying to steamroll a “guilty until proven innocent law” to block Netanyahu from becoming prime minister while he is under indictment but before any verdict. “Would such a law meet American constitutional and legal standards?” Lewin asks. He concludes, “The answer is a resounding no.”
He adds, “American courts treat indictments as nothing more than unfounded allegations. Federal and state judges routinely instruct jurors who will decide whether a defendant is guilty that the indictment is not evidence of guilt and does not detract from the presumption that the accused is innocent. A respected federal appeals court said almost 50 years ago, ‘It is hornbook law that indictments cannot be considered as evidence.’”
Lewin adds a compelling insight into the prosecutor’s mindset by recounting a meeting last year when he was “invited by Mandelblit to argue on the Netanyahu matter.” He recalls, “On October 7, 2019, in a Ministry of Justice room occupied by Mandelblit and more than 20 members of his staff, I challenged the view of the prosecutors that a promise of favorable publicity made to a political figure could be an illegal ‘bribe.’ Mandelblit was personally polite and appeared interested. His huge support staff had so little interest in what I said that they did not even take the trouble of introducing themselves to me or shaking my hand. In similar situations in the United States — when, as a lawyer for a person under investigation, I had a meeting in the Department of Justice to review a local prosecutor’s decision to seek an indictment — government lawyers always cordially introduced themselves and we exchanged business cards. Not so with Mandelblit’s staff. Their minds were made up before I opened my mouth.”
Once more, Netanyahu’s innocence or guilt is not as important as what a conviction would mean to Israel’s democracy. An icicle would be placed next to every journalist who may now wonder whether their coverage was too favorable or too critical if they also received some special benefit or enhancement? For example, were they promised a scoop, embedded coverage, an embargo advance, a leak, access to a document—or any of a hundred quid pro quos that media regularly horse trade with elected officials to beat the competition or score an exclusive?
Prosecution of media and government officials for “better coverage”—whatever that is… disqualification from office before a verdict is rendered… if Israel allows these corrosive attacks on the axles of its democracy, the nation risks driving off the road of democracy into an uncharted political ravine. From there, it will be a hard tow back.
Edwin Black is the New York Times bestselling investigative author of IBM and the Holocaust, Nazi Nexus, and Financing the Flames.