(Bloomberg Opinion) -- Ordinarily it’s bad for democracy when a sitting head of government is notified that he will face corruption charges. But the pending indictment of Israeli Prime Minister Benjamin Netanyahu at the height of an Israeli election season is actually a good thing for the rule of law.
The reason isn’t that the charges might weaken Netanyahu’s re-election bid. That’s probably true, but it’s irrelevant to my analysis.
What’s good about the charges is that they demonstrate that Israel’s governing institutions are robust enough to enforce the criminal laws of the country, even in the face of tremendous political pressure from the country’s longest-serving leader.
It was not at all a foregone conclusion that Israel’s institutions would prove willing or able to stand up to Netanyahu. The attorney general who made this decision to indict, Avichai Mandelblit, is a moderate conservative who was appointed by Netanyahu himself.
For almost two years, since the police investigation into tax and media favors first became public, the prime minister and his supporters have been bashing it as unwarranted. Taking a page from U.S. President Donald Trump’s playbook, Netanyahu has frequently called the investigation a political “witch hunt.”
All this has been happening at a time when Israeli democracy has been under other kinds of pressure. Most prominently, Netanyahu’s government proposed and passed a new nation-state law on that was understood by most observers as aimed at making Israel more Jewish and less democratic. Other laws proposed or adopted by Netanyahu’s coalition targeted nongovernmental organizations that received money from outside the country and were perceived as left wing.
In this political environment, some Israel watchers, myself included, have warned that continued movement in this direction could be devastating to the character of Israel as a rule-of-law democracy. It did not seem like an exaggeration to mention Israel in the same sentence as countries like Hungary or Poland — once healthy-seeming European democracies that have taken significant steps in the direction of weakened democratic institutions and even one-party rule.
The Netanyahu indictment cuts strongly in the opposite direction. The strength that it takes for the apparatus of the state to indict the prime minster is characteristic of strong, confident democracies, not failing ones.
To be sure, the Israeli public may decide that it doesn’t care much about whether Netanyahu committed crimes of corruption. If that is so, then the Israeli public can re-elect Netanyahu. His coalition partners can choose to form a government under his leadership once again.
If that happens, Netanyahu’s critics will no doubt say that the Israeli public’s commitment to the rule of law is in decline, and that the electorate’s willingness to choose a candidate under indictment is a sign of democratic weakness.
Seen from one perspective, that assessment has some validity. In the past, it was considered commonplace that an indicted prime minister shouldn’t stand for office again. Netanyahu seems poised to flout that convention.
Yet it’s also true that there’s a way of interpreting future votes for Netanyahu that would not necessarily signal democratic weakness. According to this view, re-electing Netanyahu while he’s under indictment would simply be an indicator that some significant percent of the Israeli public judges Netanyahu’s alleged crimes to be less important than his centrality to the achievement of their political vision. Indeed, it is possible to maintain that the crimes with which Netanyahu have been charged are relatively minor.
A useful comparison may be found in the U.S. The president been accused of campaign-finance-related felonies. That charge has been made — albeit without a formal indictment — by the U.S. Attorney’s Office for the Southern District of New York. It is supported by testimony under oath by Michael Cohen, the president’s former lawyer, who says Trump directed him to make and then conceal payments to Stormy Daniels that violated campaign-finance law.
The main reason the president hasn’t been indicted is that, unlike Netanyahu, who is a prime minister in a parliamentary system, Trump is president in an executive system that puts the president in charge of prosecution. The Department of Justice for this reason has a policy against indicting a sitting president.
In other words, the only thing that stands between Trump and Netanyahu is an accident of constitutional design.
Yet polls show that a significant number of Americans — roughly 40 percent — don’t really care about the allegations and continue to support the president. That’s probably a higher percentage of citizens than will vote for Netanyahu in Israel.
Does that mean the U.S. is facing a rule-of-law crisis, or is in democratic freefall?
I acknowledge room for disagreement here. It’s defensible to say that we should be profoundly worried about a polity in which strong evidence of felonies doesn’t substantially erode support for the president.
But it also seems at least plausible to say that Trump’s hardcore supporters simply don’t think the charges made thus far against the president warrant abandoning him. Seen in those terms, if Netanyahu is re-elected, Israel’s democracy may be no worse off than America’s.
To contact the author of this story: Noah Feldman at firstname.lastname@example.org
To contact the editor responsible for this story: Stacey Shick at email@example.com
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Noah Feldman is a Bloomberg Opinion columnist. He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”
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