Both BibI Netanyahu and Donald Trump need political solutions to their legal problems. The Israeli Premier hopes to have already solved his by using his tiny majority in the Israeli Knesset while the former President Trump, in spite of all his repeated pleas to the “GOP” majority in the House of Representatives to “Stop It”, is floundering. The Don still can be saved if elected President in18 months time. Currently he is the "GOP" front runner for their Presidential nomination who has already been charged with 72 felonies. If convicted of just one, 60 percent of Republicans, have, in repeated surveys, vowed not to vote for him. (Bibi’s advantage is he is the sitting Premier while former President Trump is trying to leverage his position as the leading candidate for the "GOP” nomination for the 2024 Presidential election).
Both the USA and Israel are liberal democracies so why is Trump more likely to be facing jail time while Bibi is in with a much stronger chance to escape? This in spite of the fact that they both are narcissistic authoritarians who believe they are in fact their countries. In fairness to the Israeli premier he is attempting a parliamentary coup with no extra legal conspiracies and force involved. In addition Netanyahu's alleged crimes pale in relation to Trump's.
However the key objectives of both is to escape jail time at the expense of their countries democracies. One rationale they have in common is that they both argue who the hell are unelected bodies such as the judiciary to interfere with those whom the electorate voted for!
To start with one has to define the components of what constitutes a State and a “Liberal” democracy and how could each of these countries have differed in reaching this stage where contrasting strategies have been exercised to escape the rule of law.
HOW IS A STATE AND A “LIBERAL” DEMOCRACY DEFINED
Historically the state has been defined, largely arising out of the work of German sociologist, Max Weber, as having a defined space where the power was vested only in the ruling party. (Weber emphasized the difference between a patriarchal state where the ruler dished out the goodies to family and friends and a merit based one where the bureaucrats were elected on merit).
A liberal democratic state according to the political scientist Francis Fukuyama must exhibit “accountability” and the rule of law. The latter ensures that everyone, including the leaders, were equally subject to justice before an independent judiciary. The latter can also place curbs on what they consider illegal or unconstitutional acts. For practical purposes free and fair elections of all the citizens assured “accountability” of the ruling party.
Also a liberal democratic nation developed institutions which helped maintain the state’s integrity, safety and liberal democracy.
THE STATE AND A “LIBERAL” DEMOCRACY - AMERICA
America following the Declaration of Independence and the subsequent war against British colonial rule had a large run up to their formation of a nation state allowing time for the creation of a Constitution with three components to government. (Not to mention that each State had jurisdiction in several areas). These components were: The Legislative body which itself was divided into two separate chambers elected by differing constituency methodologies; the Executive Branch under a President whose office was indirectly decided upon by the whole electorate and the Judiciary which was in several layers but under the aegis of a Supreme Court. The latter members were nominated by politicians and had life long tenure.
The nine person Supreme Court is still the final arbiter of what is the law and is the adjudicator of all issues. Its jurisdiction covers what is or is not constitutional. Biden has called the current Court “wrong” on a number of occasions but there is no way he would tamper with it without a “broad consensus”, which was his advice to Netanyahu when the latter mooted all the "reforms" he had for the Israeli Supreme Court.
This layer upon layer of judicial chambers has been misutilized by Trump all his life, scaring would be creditors, delaying decisions by motion after motion, making appeal upon appeal and countersuing, all to the extent of having been involved in 4000 suits. In addition he has had close on 70 legal attempts at reversing the 2020 election. Trump was exempt from criminal prosecution while President because of a weird rule of the independent Justice department that does not allow arraignment of a sitting Commander in Chief. A law that does not apply to the Israeli Premier.
But now is not the time to go into detail of the deficiencies of the American system other than to say that as Trump is no longer President he is being held to account where he has been thus far been charged with 72 felonies in three separate cases. He is following the dictum of the McCarthyite lawyer Roy Cohn by filing repeated frivolous motions, appealing and delaying the processes to the extent of spending at least 56 million dollars on legal fees in the past eighteen months. So however labored the process may be Trump may not be able to avoid prosecution in at least a few trials before the election. Being convicted does not rule him out as a candidate but virtually puts paid to his chances of being elected President again.
At the time of writing it appears that the conspiracy and obstruction trial involving Trump’s attempts to hang on to power has the most chance of moving quickly. (Blog: 6/13/23, “Trump Indicted for Espionage - What Now and Later?” ). The elegant indictment is straight forward and Trump is the only one charged for the conspiracy. The Judge in question has held several similar other trials of the insurrectionists of January 6, 2019 and has already had Trump asking for her recusal. She also appears impervious to attempts to delay the trial.
THE STATE AND A “LIBERAL” DEMOCRACY - ISRAEL
Israel was declared a state in 1947, 2 years after WW11, rising from the ashes of the Holocaust. The moment that happened the Arab world descended upon it like vultures swooping down upon a carcass. The war really started in earnest in May 1948 when the British mandate for Palestine finally ended. The UNO had initially declared partition between the Israelis and Palestinians. As with that war and every other, Israel ended up with more territory than they started with.
After the rag bag army in what was called “The First War of Independence” triumphed in 1949, the accent was on survival. There was not time for years of “Federalist Papers” and the like and prolonged debate about a Constitution. The Knesset or parliament was to be constituted on the basis of proportional representation of the large number of parties in Israel which is the situation to this day. A court system was gradually set up with the Supreme Court at the top. And that was that as the post war refugee Jews were accommodated in Israel together with what was and still is a 20 percent Arab population.
In the 75 years that followed Israel made remarkable progress and was considered an island of liberal democracy in a sea of authoritarian governments in the Middle East. It bounded ahead pioneering the purifying of sea water to drinking water and notably created a high tech center considered second only to Silicon Valley. As the years rolled by the left wing Labor Party was ousted by the right wing Likud Party. Bibi Netanyahu was a rising star ever since the mid nineties to the extent that after the assassination of peace seeking Rabin he was accused of fomenting the environment in which it occurred. (Jay H. Ell has written often about Bibi who was to dominate Israeli politics in the second millennium. His most recent blog on April 5, 2023 was entitled,“Why Netanyahu Folded and What Is Next”).
It is fair to say that initially Israel made every attempt to create a two party solution with what had to be the most generous offer in 2000 when Ehud Barack, according to Bill Clinton, gave into every Palestinian demand. In that proposal nearly a 100 percent of the West Bank would be ceded to the Palestinians. Attempts were made on both sides thereafter till this day but gradually opinions hardened. The only bright spot after the turn of the millennium was when Ariel Sharon, a right wing Israeli Premier, ceded the well established Gaza to the Palestinian upending 21 Israeli settlements in the process. For his troubles the Iran sponsored Hamas took over and turned the territory into a hotspot for terrorist activities.
In fairness to the Palestinians they have remained a political football for the powers in the Middle East. The leader of the Palestinians in the West Bank for decades and successor to Arafat, Mahmoud Abbas has no control of the territory not having held an election for a decade and a half. His impotence was on display when he was powerless to influence the Israelis from tearing up a refugee camp in pursuit of terrorists. Israel’s grip on the West Bank territory has grown tighter and tighter and Netanyahu’s current government has no intention of ever aspiring to a two state solution.
All the while Israel’s tenuous liberal democracy held. There were regular fair and free elections and the Supreme Court provided equity regularly intervening on behalf of Palestinian rights and axing excesses by whoever was the ruling party. It developed, from Anglo Saxon courts, the concept of “unreasonable actions”. (The principle is also utilized in the judging of quasi judicial bodies such as professional medical bodies where a supervising court may disagree with the former’s decision but as long it was “reasonable” they would not reverse it). There are three examples of decisions where the current Netanyahu coalition are at odds with decisions that might be deemed “unreasonable” by The Court - to appoint felons to the cabinet, allowing the government to fire and or ignore the Attorney General’s injunctions and that no group should be exempted from military conscription.
Netanyahu did the unthinkable in the aftermath of the 2022 election, the fifth in four years, when he formed a coalition with the Religious Zionist Party who were hell bent on creating more Settlements and taking over the West Bank and the fundamentalist Haredi Parties, who wanted a law that legally exempted their children from conscription and that their schools need only teach religious studies with no science, math, English or civics. Bibi got his narrow majority by making promises to get the latters’ support. Now only the Supreme Court stands in his way.
There was only one reason why Netanyahu would have risked the Israeli economy and why he was in sync with limiting the power of the Supreme Court which would inter alia allow him to get rid of the prosecuting Attorney General. He has to hope that the Supreme Court will defer to the elected representatives of the Knesset and not overturn the Knesset's decisions.
RESPONSE TO NETANYAHU’S MOVES
Bibi announced a range of "reforms" of the Supreme Court but the unbelievable protests that took place week after week as well as pressure from Biden and the international money markets made him hold back for thirty weeks on the first of the many laws that would emasculate the court. With no Constitution to fall back on the only other accountability and check on the ruling coalition, who with the barest of majorities were committed to change the country from a liberal democracy to an authoritarian one, was the populace who delivered in spades. Besides the hundreds of thousands protesting every week, a the most recent survey shows that almost 70 percent of the Israelis are against tinkering with the authority of the Supreme Court.
The Premier was finally able to introduce one of his "reforms" namely that the Supreme Court was no longer able to use "unreasonableness" as a criterion for axing a Knesset decision.
There is one other factor that maintains a liberal democracy and that is its institutions. There are no more revered Israeli establishments than the armed forces and intelligence agencies, such as the internal - Shin Bet, military - Amman as well the famed Mossad. Every living past head of all these armed forces and intelligence entities, except one, condemned the right wing legislative coup. The Defense Minister originally was fired when he warned that the reservists were threatening not to report for duty. The current Chief of Staff of the armed forces sort, in vain, an urgent meeting with the Prime Minister for four days prior to the vote. The Police Chief resigned rather than use force to control the protestors.
Like, with the strikes even by doctors and the monumental protests, which served to protect the respectable international standing of the nation state, nothing helped. Bibi adjourned the Knesset till October when his coalition partners vowed to continue with “judicial reform”.
Besides the Supreme Court which Jay H. Ell will get to in a moment, Biden has a moon shot plan presented via the New York Times famed opinion writer Tom Friedman. The latter wrote that the USA President was in the process of negotiating a defense deal between the USA and Saudis which would include recognition of Israel. Conditional too was an agreement on the Settlements and the ultimate independence of the Palestinians, (currently not a viable proposition). Bibi would then have to form a government with the opposition sans the fundamentalists). This would not keep Bibi out of jail and is unlikely.
Otherwise the ball is in the Supreme Court as the massive protests roll on.
SEPTEMBER AND THE SUPREME COURT AND THE CONSEQUENCES.
One month prior to the Knesset returning in October, The Supreme Court has to consider momentous decisions. First and foremost they have to consider whether the negation of the “Unreasonableness” law contravenes basic Civil and Human rights and should be voided. There are also petitions as to whether there is a conflict of interest between Bibi being Premier while his trial is proceeding and finally the legality of the Justice Minister refusal to convene the appointments committee of the Supreme Court.
The outcome of these trials will dictate the immediate future of Israel and could even result in Civil War. The key institutions will no doubt uphold the law. But which law? The law of the minority government in the Knesset or that of the Supreme Court?
AT THE END OF THE DAY
Democracies are fragile and can be manipulated as Trump and Netanyahu have shown.
There is only one worse outcome for both Israel and USA than charging their leaders and that would be not to hold them responsible.
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