Pollak: Netanyahu Faces Legislative Coup d’État in Israel

Prime Minister Benjamin Netanyahu won Israel’s elections this week — and may soon be ousted from power.

The country’s left-wing parties, frustrated that they cannot unseat Netanyahu at the ballot box, have combined to put forward a bill — after the election — that establishes a two-term limit for prime ministers, and that bars anyone who is facing criminal indictment from forming a government.

Note, again: they are doing this after they lost the election.

Netanyahu is the longest-serving prime minister in the history of the State of Israel. He has served for four-plus terms for two simple reasons: he has grown the country’s economy and he has kept it safe from external threats.

Five years ago, he dared to stand up to U.S. President Barack Obama over a nuclear deal with Iran that put Israel’s very existence in danger. Almost everyone in Israel opposed the Iran deal; only Bibi dared do so to Obama’s face.

He has no shortage of political enemies, particularly in what Americans call the “Deep State” — the nexus of law enforcement and intelligence agencies that resist popular control of the government.

For the last several decades, Israel’s secular, left-wing Ashkenazi elite has seen its political power erode. It has responded by exerting greater power through the legal system — what Israeli-Canadian legal scholar Ran Hirschl has called the “jursitocracy.”

Next Tuesday, Netanyahu will face “corruption” charges that are so flimsy that even if they were provable, they would hardly amount to what Americans call “high crimes and misdemeanors.”

One alleges that Netanyahu was given cigars and champagne to lobby for a change in the tax laws that never happened. Another alleges that a newspaper offered him favorable coverage if he would back a law restricting free newspapers, which he refused.

Netanyahu, like President Donald Trump, is being targeted by a fraternity of prosecutors who are abusing their power. They have paralyzed Israeli society by telling the public that if Netanyahu does not face prosecution, that means he is above the law.

Some reasonable Israelis, frightened of setting a bad precedent for actual corruption, would prefer that Netanyahu give up — forgetting that while he is not above the law, he is not below it, either.

Meanwhile, the Israeli electorate has responded by voting for Netanyahu and his right-wing coalition of parties in three successive elections over the past year. And this past election was Netanyahu’s best ever. He had a positive message and led the Likud to 36 seats, well ahead of the opposition Blue and White. Israelis expect him to form a government, even though his coalition fell three short of the 61 needed to form a majority in the Israeli Knesset.

The reason Netanyahu has come up short, three times in a row, is that a small secular nationalist party, Yisrael Beiteinu, has defected from his camp. Led by the erratic Avigdor Liberman, who has a personal gripe against Netanyahu, the party refuses to join a government that includes religious parties. In the past, Liberman has also refused to join a government that includes Israel’s Arab parties, who scored 15 seats. But that may be changing.

(Ironically, the strong performance of the Arab parties this week may have much to do with the prejudice exhibited by Israel’s left. The Blue and White Party, overconfident of victory, declared that it would win what leader Benny Gantz called a “Jewish majority,” i.e. excluding the Arab parties. As the Jerusalem Post‘s Maayan Jaffe-Hoffman argues, that may have suggested to Arab voters they were unwelcome in the mainstream Israeli opposition.)

Liberman has indicated that he will join Blue and White, small left-wing parties, and the Arab bloc in supporting a bill to bar Netanyahu from returning as prime minister. In the U.S. such a law would be unconstitutional for a variety of reasons. It is an attempt to change the rules of the election after the fact. It is effectively a bill of attainder, aimed at one particular individual. As Mark Levin has noted, it would disenfranchise half the Israeli electorate.

Arguably, the bill conflicts with Israel’s Basic Laws, which function as the country’s constitution, but the courts are unlikely to favor Netanyahu. And unlike the United States, where the legislature hold the power of oversight of the executive, Israel’s prosecutors are unaccountable. The new law, Caroline Glick points out, allows the unelected attorney general to determine the leadership of the country. But the anti-Netanyahu forces are out of control.

In all of this, one sees the wisdom of America’s founders, who understood — as in Alexander Hamilton’s often-misquoted Federalist No. 65 — that crimes alleged against the country’s leader would be inherently political.

The House of Representatives can impeach with a simple majority, which guarantees no president will be above the law. But the Senate requires a two-thirds majority to convict, which suggests no president will be below the law, either.

What is happening in Israel today points to the fate that the U.S. only recently narrowly avoided. A prosecutorial elite, teaming with a temporary and small legislative majority, is carrying out a legislative coup d’état.

Whatever government results from that effort will have diminished legitimacy and stability.

At the risk of interfering, the Trump administration should warn Israel not to undermine its claim to be the only democracy in the Middle East.

Joel B. Pollak is Senior Editor-at-Large at Breitbart News and the host of Breitbart News Sunday on Sirius XM Patriot on Sunday evenings from 7 p.m. to 10 p.m. ET (4 p.m. to 7 p.m. PT). He earned an A.B. in Social Studies and Environmental Science and Public Policy from Harvard College, and a J.D. from Harvard Law School. He is a winner of the 2018 Robert Novak Journalism Alumni Fellowship. He is also the co-author of How Trump Won: The Inside Story of a Revolution, which is available from Regnery. Follow him on Twitter at @joelpollak.