Why Bibi’s on Borrowed Time

TEL AVIV, Israel—Even in ordinary circumstances, the results of the latest Israeli election would amount to a crushing blow for Prime Minister Benjamin Netanyahu. His Likud party finished second behind the centrist Blue and White party last week, and his parliamentary bloc lost ground in the 120-member legislature.

But these aren’t ordinary times in Israel.

In the aftermath of last week’s vote, Netanyahu faces not only huge obstacles to assembling a coalition and securing another term as Israel’s leader but also a series of indictments on corruption charges that could drop as soon as next month.

Those two factors—the election drubbing and the legal trouble—are prompting some political analysts to conclude, cautiously for now, that Netanyahu’s long dominance over Israeli politics is coming to an end.

Netanyahu continues to fight to secure a coalition government under his leadership, negotiating late Monday with rival Blue and White leader Benny Gantz—a neophyte and former army chief—over the terms of a possible broad-based coalition. The two remain locked in a standoff as Israeli President Reuven Rivlin began consulting with party representatives about whether Gantz or Netanyahu should get the first crack at forming a government.

But the prime minister’s political fate and his legal problems will become perilously intertwined on Oct. 2. That’s when a pre-indictment hearing with Israeli Attorney General Avichai Mandelblit on charges of bribery, breach of trust, and fraud will commence. The hearing will likely overlap with the post-election coalition negotiations—making Netanyahu’s position even more tenuous.

“The intersection of the judicial and political processes works against Netanyahu,” said Gayil Talshir, a political scientist at the Hebrew University of Jerusalem.

“If Netanyahu is indicted and he fails to create a coalition, then he will be done in the eyes of the Israeli public. For the right wing, Netanyahu, who has always been a magician [of political survival], will become a liability.”

Neither Netanyahu nor Gantz currently has a clear path to a 61-seat majority. Netanyahu and the right-wing and religious parties have a bloc of 55, while a cluster of center, left, and Arab parties that have loosely backed Gantz number 57. An ultra-nationalist secular party led by former Defense Minister Avigdor Lieberman, who assailed Netanyahu’s alliance with religious parties, is playing coy. Many Israelis fear the prospect that, in the case of a deadlocked parliament, the country might find itself headed to a third election within a year. (Netanyahu failed to form a coalition following an election in April of this year.)

In the aftermath of the Sept. 17 vote, leading Israeli politicians have called for a “unity” government in which Likud and Blue and White would share power—and possibly take turns with two-year tenures in the premiership between Netanyahu and Gantz. In that case, Netanyahu needs to go first in order to shield himself from possible indictment.

Though the High Court of Justice has ruled in the past that cabinet ministers must resign in the event of an indictment, the question of whether the precedent should apply to a prime minister has never been tested.

The coming coalition-building process could take months to complete. Under Israeli election law, each parliament member tapped to form a government has four to six weeks to complete the task. In an unusual twist, Israel’s press is reporting that both Netanyahu and Gantz prefer to defer to the other, betting that whoever tries first is doomed to failure and that politicians will become more flexible in the second round of talks.

The choice of who gets the mandate to form a government is in the hands of Rivlin. Traditionally, the president chooses the party leader best positioned to control a majority of the parliament. But with no clear favorite, Rivlin has wide discretion on the matter.

“Bibi is seriously on his heels here. He’s not the largest party and not leading the largest bloc,” said Jonathan Rynhold, a political science professor at Bar-Ilan University. “His position will start to erode. Structurally, he’s in a weak position. But he is the most skillful politician Israel has ever known, so you can’t count him out.”

Netanyahu may find himself nudged aside by members of his own party, but that will happen only if coalition negotiations have exhausted themselves with no clear results, Rynhold said. No potential successor will want to take the step to depose such a popular leader.

Others have suggested that Netanyahu might be induced to accept a plea deal that would involve him resigning and leaving politics—a deal reminiscent of Richard Nixon’s resignation as U.S. president and subsequent pardon by his successor, Gerald Ford.

Weeks before the April election, Mandelblit, a Netanyahu appointee who previously served as his cabinet secretary, released a 60-page charge sheet with graft allegations of bribe-taking, fraud, and breach of public trust in three separate cases involving the prime minister’s dealings with Israeli tycoons. In the most serious case, Netanyahu is alleged to have eased regulations on Israel’s telephone monopoly, Bezeq, in return for the company’s former controlling shareholder, Shaul Elovitch, providing the prime minister favorable coverage in the online portal he owns, Walla! News.

Throughout a three-year investigation, Netanyahu has furiously denied the charges, and no one in his party has challenged him on the issue. When the April election result initially seemed favorable for Netanyahu, his party members moved to pass a law to give him retroactive immunity from prosecution while in office. They also sought to pass a law allowing the parliament to override decisions of the High Court of Justice. Those efforts collapsed when Netanyahu’s coalition negotiations failed. He then dissolved the parliament to force a second election.

The results of the current vote suggest that Netanyahu will not be able to form a right-wing religious coalition that will be able to pass laws to shield him from indictment or weaken the High Court of Justice.

“We don’t know for sure how the legal procedure will end. We are all assuming that the charge sheet will end up in an indictment,” said Chemi Shalev, a commentator for the Haaretz newspaper.

“The attorney general is notoriously slow. It’s impossible to factor in when he will come up with a decision. It could be weeks or months.”

A report in Haaretz suggested that the final indictment could come shortly after the Oct. 2 hearing. If Netanyahu is still presiding over a lame-duck government, it would be an unprecedented scenario with no clear legal prescription.

“If the decision is to indict him, and this is done before the coalition is in place, this is terra incognita,” said Yedidia Stern, a law professor at Bar-Ilan University and a senior fellow at the Israel Democracy Institute. “The question is whether he can have a mandate to become prime minister.”

Such an outcome would likely produce a petition to the High Court of Justice and a potential constitutional crisis. The Israeli court might find itself deciding the election outcome, a situation similar to the U.S. Supreme Court’s intervention after the 2000 presidential election between George W. Bush and Al Gore.

“The court will have to make a decision, which might be whether or not Netanyahu can be prime minister,” Stern said. “Obviously, it’s not good for democracies when a court decides who will be the prime minister.”