As Israel prepares to swear in its next Knesset, many are waiting to learn—and some then to pounce on—the anticipated coalition’s position on a proposed law that would bar the criminal prosecution of a sitting prime minister. Enemies of Benjamin Netanyahu are already publishing op-eds, articles and maybe even books, announcing the official “end of democracy and the rule of law” in Israel if such a law is enacted. Typical is the piece in The Times of Israel by David Horovitz, which suggests that if a sitting prime minister can’t be criminally prosecuted, then that means he’s “above the law.”
In fact, as is clear from a bipartisan record in the United States that rests on legal authority stretching back centuries, the exact opposite is the case. As just explained by Robert Mueller, the special counsel who has spent the last two years investigating U.S. President Donald Trump, “criminal accusation against a sitting president would place burdens on the president’s capacity to govern and potentially preempt constitutional processes for addressing presidential misconduct.”
Israel’s procedure for removing the nation’s chief executive is different than America’s. But the principle Mueller invokes applies with at least equal force—in fact, with even greater force—in Israel than it does in the United States.
This is so because it’s far easier in Israel for a sitting prime minister than it is for a sitting U.S. president to be removed from office. And no one is suggesting that a former prime minister or president has any immunity from criminal charges. The issue is not whether Netanyahu can be criminally charged, but only when—and whether such charges can be used to remove him from office.
In the United States, a president becomes a former president only if his term ends, if he resigns voluntarily, or if he is first impeached by the U.S. House of Representatives (which requires that a majority of the House votes to accuse the president of “high crimes and misdemeanors”). Then the Senate holds a trial of the president and must find him guilty of at least one of those charges, in which case he is immediately removed from office.
In Israel, by contrast, a prime minister becomes a former prime minister whenever he loses the confidence of 61 members of the Knesset. No formal charge by the legislature, and no trial, is needed. That means that, if the law sought by Netanyahu’s coalition is in fact put in the books, the political process, rather than a single prosecutor, decides whether a prime minister continues to serve. That is the very essence of democracy. It is the placement of that decision in the hands of an unelected bureaucrat—a prosecutor who has never run for office or been chosen by any voters—that is the real threat to the peoples’ rule.
In the United States, this issue was first fully addressed by the Department of Justice in 1973, when the president was a Republican, and the analysis was performed by a Republican lawyer appointed by that Republican president. The conclusions reached then—that a sitting president cannot be charged with a crime—were completely reaffirmed in 2000, when the president was a Democrat and the lawyer doing the assessment was also himself a Democrat.
Both U.S. Department of Justice statements explained that barring a prosecutor from criminally charging a president, and leaving that decision with the legislature, places responsibility
in the hands of duly elected and politically accountable officials. The House and Senate are appropriate institutional actors to consider the competing interests favoring and opposing a decision to subject the President and the Nation to a Senate trial and perhaps removal. Congress is structurally designed to consider and reflect the interests of the entire nation, and individual Members of Congress must ultimately account for their decisions to their constituencies.
The Justice Department explained that, if instead of the House and Senate the decision were left in the hands of a prosecutor, the president’s fate would not be decided through a democratic process:
By contrast, the most important decisions in the process of criminal prosecution would lie in the hands of unaccountable grand and petit jurors, deliberating in secret, perhaps influenced by regional or other concerns not shared by the general polity, guided by a prosecutor who is only indirectly accountable to the public. It would be inconsistent with that carefully considered judgment to permit an unelected grand jury and prosecutor effectively to “remove” a President by bringing criminal charges against him while he remains in office.
This analysis applies with full force in Israel; in fact, with even more force, because juries, grand and petit, are themselves ways for “the people” to make their voices heard in law enforcement. But Israel doesn’t have juries of either kind. So the decision to criminally charge a head of state would be made in Israel entirely by what the U.S. Justice Department has called “an unelected prosecutor.” That’s hardly a way for the people’s ruler to be chosen.
Israel’s governments, remaining in office only as long as they can hold together a coalition of unruly parties, are notoriously fragile. A law that immunizes a sitting prime minister from criminal prosecution does one thing and one thing only: It gives the people’s legislature in Israel the power to decide whether a head of state should be removed.
This is particularly sensible because the voters in Israel knew this issue was on the table when they went to the polls. In this respect, Attorney General Avichai Mandelblit did both Israeli voters and Netanyahu a favor when he announced, only shortly before the elections, that he intends to indict Netanyahu. So voters knew this issue would come up—and they chose a coalition that, it was clear, would support Netanyahu on the proposed law. Allowing the Knesset to take this step is exactly what democracy calls for, and it’s what the voters in fact did call for.
And what about the rule of law?
The American authorities answer this claim as well because they remind us that at the end of the day, law is made by the people. Equally important, the law is enforced by a government that is and must always be controlled by the people. That popular sovereignty is the deepest and most important source of the law’s legitimacy. Take away the people’s control and law enforcement becomes just another tool for some small group to impose its will on everyone else.
The protection Netanyahu seeks, which is the limitation on prosecution already conferred upon the American president, does not immunize either officer from criminal liability. Both president and prime minister can be criminally charged as soon as they leave office. The law sought in Israel, like the rule in place in the United States, protects only one thing: the people’s right to choose their leader.
Anything else is tyranny.
Jerome M. Marcus is a lawyer and a fellow at the Kohelet Policy Forum in Jerusalem.