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Would a Pending Criminal Charge Disqualify Netanyahu Under American Law? Answer: No.

March 8th 2020

Supreme Court Lady Justice

Opponents of Prime Minister Netanyahu are urging the Knesset to enact a law that would disqualify anyone charged with crime in Israel from forming a government. Because Netanyahu has been formally accused by Attorney General Avichai Mandelblit, he should be barred, they say, from forming a coalition government and occupying the nation’s highest elective office.

Would such a law meet American constitutional and legal standards? The answer is a resounding no.

In Israel average citizens cannot check the authority of the prosecutor to initiate a criminal case. The Fifth Amendment to the United States Constitution guarantees that no felony charge can be made without an indictment by a grand jury.

That means that in federal courts – where most major nonviolent crimes are tried and decided – no one is accused unless enough evidence is presented to persuade at least 12 of 23 citizens impaneled as a grand jury that there is probable cause to conclude that the accused has committed a serious crime.

As a Department of Justice civil-rights prosecutor in the 1960’s, I tried to file criminal charges against local police who had engaged in racial discrimination. It was not easy to win the votes of a majority of local grand juries. Some of our cases ended in grand jury refusals to indict.

No panel of Israeli citizens heard or considered the case against Netanyahu. The decision to charge Netanyahu was made by one person, Attorney General Mandelblit, on the recommendation of a staff of career prosecutors. Netanyahu’s defense lawyers had an opportunity under Israeli law to try to persuade Mandelblit and his team not to file charges, but the ultimate decision was Mandelblit’s alone, reviewable by no panel of ordinary citizens.

I was invited by Mandelblit to argue one narrow legal issue. 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.

In the United States minor charges – misdemeanors – may be initiated by prosecutors alone. No one treats such charges – called “informations” rather than “indictments” – as being anything more than the personal conclusions of prosecutors. No American institution would disqualify or declare ineligible someone who is the subject of an information that has not gone to trial.

Indictments might be thought to have more substance than informations because they represent a conclusion by some ordinary citizens based on evidence presented to them. Nonetheless, 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.” Judicial decisions of American courts repeatedly declare that an indictment is merely an accusation designed to notify the defendant of the charges against him so that he may adequately prepare a defense.

To be sure, courts impose conditions on those formally accused of crime to insure that they will appear to respond to the charges and will not flee. But if a defendant satisfies a judge or magistrate that he will show up at the appointed time for determining his guilt or innocence and that his freedom presents no danger to the community, his status as an accused does not otherwise disqualify him.

No American court has considered the pendency of an information or indictment a constitutionally permissible reason for ineligibility or disqualification. If Israel chooses to enact the law proposed by Netanyahu’s opponents, it will be taking a step that American courts would condemn.

Nathan Lewin is a Washington, D.C., attorney who specializes in religious freedom cases before the US Supreme Court.

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