Well, no one in Israel is quite sure.
“All of the questions that we are dealing with now are new questions for Israel,” said Suzie Navot, a professor of constitutional law at the Striks School of Law in Israel. “We’ve never been in this situation. It’s unprecedented.”
Here are some of the key questions now being asked about Netanyahu’s legal trajectory.
Can he stay on as prime minister?
Yes, according to Israel’s Basic Law — its equivalent of a constitution.
Israeli law requires the top leader to step down if convicted, but not simply when indicted. Israeli prime ministers have resigned of their own accord due to legal troubles: In 2008, Prime Minister Ehud Olmert resigned over corruption allegations before he was formally indicted (and later convicted). Netanyahu has instead opted to attack the investigation itself, branding it a “witch hunt” and “attempted coup” and calling to “investigate the investigators.”
However, given the unprecedented nature of Israel’s current political landscape, the Basic Law alone can’t fully answer this question. That’s because it’s also “a political one,” Navot said, and touches on “whether the members of the Knesset [Israel’s parliament] and especially members of the Likud party will [allow] Netanyahu as their next leader.”
So far, Netanyahu’s Likud party has pledged to stand by him, as The Washington Post’s Ruth Eglash reported. It’s supporting him despite the corruption charges and despite his inability to forge a governing coalition after the past two elections.
In votes held in April and again in September, right-wing blocs won the most votes, but Netanyahu’s friend-turned-rival Avigdor Liberman twice refused to sit in a Netanyahu-led government, making it impossible for the prime minister to secure the 61 seats needed to form a ruling coalition in Israel’s 120-member parliament.
Netanyahu is eager to stay in power for a number of reasons, chief among them that he reportedly wants to pass a law shielding the prime minister from prosecution while in office. But since April, Netanyahu has headed a caretaker government, which sits in limbo and can’t pass any new laws.
How could he legally be forced out?
On the political level, Netanyahu could be ousted by a Likud primary if the party decided to reverse course and elect a new leader. On Saturday, Likud parliamentary member Gideon Saar, one of Netanyahu’s top rivals in the party, made the strongest bid yet. Saar called for early primaries and rejected the characterization of the indictments as “a coup.” As of now, however, the party formally remains behind Netanyahu.
On the legal level, Netanyahu’s opponents could petition Israel’s Supreme Court to disqualify him on two related questions: First, can he remain head of a caretaker government while under indictment? Second, if he was to secure a coalition (either through a last-minute deal or in a third election) would he be allowed to form and head a new government while under indictment?
Neither of these questions are explicitly answered in the Basic Law.
Already Thursday, the head of the center-left Labor Party, Amir Peretz, announced he was instructing the party’s lawyers to petition the Supreme Court to ask for Netanyahu’s removal because the prime minister’s legal troubles have become a barrier to solving the election standoff. Because neither Netanyahu nor his leading rival have been able to form a coalition since the most recent election in September, Israel’s parliament now has less than three weeks to try to form a ruling coalition before yet another general election is called.
Israeli Attorney General Avichai Mandelblit, a Netanyahu appointee who issued the indictments, in theory would be the one defending Netanyahu against any possible Supreme Court challenges. In a rare move, Mandelblit could refuse to do so on legal grounds, Navot said.
Israeli media reported Thursday that Mandelblit, according to unnamed legal officials, may soon publish a legal ruling that there are “significant legal difficulties” in Netanyahu being tasked with forming a new government while under indictment.
Then what? Well … stay tuned.
How could Netanyahu fight back?
One line of defense championed by Netanyahu’s supporters is that he can’t be barred by the Supreme Court because the public voted him in.
In a 2013 ruling, however, the Supreme Court ordered the removal of two sitting mayors indicted on corruption charges, which could serve as a precedent in this case, Navot said. In 1993, the Supreme Court also ordered two parliamentary members, Aryeh Deri and Raphael Pinchasi, to resign after they were indicted on corruption charges. (Deri has since been reelected to the Knesset.)
Can Netanyahu legally receive immunity?
The prime minister is certainly hoping so.
If Netanyahu isn’t disqualified as prime minister by the Supreme Court, then his next step would be to apply to the Knesset for procedural immunity to protect him from prosecution while in office. (He’d prefer to have a law protecting him, but this is his second best option in lieu of seeing the Knesset approve a new piece of legislation.) Netanyahu has 30 days to decide whether he’ll do so, and during this period the attorney general can’t formally file the indictment charges, which would put into gear the next step of legal procedures. (Though the attorney general has indicted Netanyahu, the next step on his end is to formally file the charges in a Jerusalem district court.) If Netanyahu chooses to request the immunity, a special Knesset committee is then tasked with evaluating it.
Except … as there’s no parliament right now, the Knesset can’t form this special committee. So if Netanyahu can stay in office, and if the country does go as expected to third elections, it could be another few months, at least, until the Knesset is fully functioning and a committee can review his case. There’s no certainty he would receive this immunity, but if the Knesset did rule in his favor, the attorney general could then appeal to the Supreme Court to have it revoked.
There’s also the possibility that if he wins a third election and is able to cobble together a governing coalition, Netanyahu could find a way to push through legislation to legally protect him, or, in a more last-resort move, strike some kind of deal that would allow him to resign in exchange for immunity.
How long will the legal process take?
Unless Netanyahu strikes a plea bargain or receives immunity, his legal troubles could go on for another two to four years, Navot said. That’s on top of the already three years of investigations and speculation that preceded the indictment.
The prime minister’s case could drag on that long because of all that a trial entails: Gathering and presentation of evidence, examination and cross-examination of witnesses, issuance of a ruling by a judge. And that’s not to mention any appeals if Netanyahu is convicted.