As observers from here in the States, we were dismayed by the pomp and circumstance surrounding the release by Israeli police of their recommended criminal charges against Israeli Prime Minister Benjamin Netanyahu.

Israeli law authorizes the police to not only investigate facts underlying possible criminal activity but to also call on prosecutors to indict based on what they find. But in this instance, although the focus of the police was palpably skewed, and the Attorney General of Israel has yet to pass on any charges as he must by Israeli law for any case to move forward, in the eyes of the public the prime minister stands not only suspected of crimes, but also convicted.


For context, consider the uproar that continues to track James Comey for having gone public with his decision not to prosecute Hillary Clinton for using a private e-mail server and for making patently false statements to Congress and the FBI. At the time, Comey was the director of the FBI, the quintessential investigative body, and not invested with any prosecutorial discretion or responsibilities.

Given the ever-mounting threats to Israeli security and the crucial developments swiftly unfolding in Israel’s relations with the United States and the world, it is unfortunate that the police acted with such lack of circumspection in undermining Mr. Netanyahu and his ability to continue to govern in these perilous and fast-moving times. This is especially so since most polls show that Israel voters, as a whole, continue to back his leadership.

This is a remarkable situation for someone who has been Israel’s dominant political figure for a generation. He has served as prime minister for a total of 12 years including since 2009. To be sure, Mr. Netanyahu has been dogged by charges of corruption almost as long as he has been in office, but nothing has ever come of the accusations and it is unclear that any new charges will drive him from office. He denies all of them and his Likud party and current coalition remain in his corner.

We would go even further. In a democracy, where the rule of law is transcendent, police investigators should not be permitted to run roughshod over a defendant’s right to a fair trial. And a police investigation is merely the initial step in any potential criminal matter, which may be followed by an evaluation by a prosecutor of the findings and a determination of whether to indict, which in turn is followed by a trial in which a defendant is found guilty or innocent. But we do not hesitate to make the case that there must also be an added measure of presumptive shield for a head of state with critical responsibilities to shield him or her from attacks which may or may not end up being warranted. Accusations should not be permitted to undermine the orderly transaction of the people’s business.

The recommended charges themselves are also troubling. In one of the cases, the prime minister is alleged to have, over a period of nine years, received pricey cigars, champagne, and other items of value from two persons from whom the prime minister is alleged to have benefited.

The receipt of gifts alone by public officials, though, is generally not considered a crime. For example, in the recent trial of New Jersey Sen. Robert Menendez, the receipt of valuable gifts was not disputed. Nor was the receipt of valuable gifts in the case against former Virginia Governor Robert McDonnell. In both cases, the prosecutions failed because the government could not link the gifts to any official acts the defendants did to reward the donors of those gifts.

Receipt of the gifts may constitute an ethical lapse, but they are not criminal bribery unless a quid pro quo – i.e., “this for that” – is shown.

And here’s the point: The Israeli police and press keep trumpeting the receipt of gifts by the prime minister as if that were the beginning and end of the matter. But heads of state and politicians often receive gifts from different sources; that does not automatically make them criminals. The indispensable question is always whether there was reciprocity in the form of an illegal quid pro quo.

And that is where the Israeli police and press largely go silent because, absent much more by way of evidence, it is impossible to level a credible allegation of illegality.

The second and even weaker claim of the police and press is that the prime minister had attempted to get more favorable press coverage from a leading Israeli newspaper that had been bashing him and his administration. That kind of charge seems laughable if it were not so tragic. Is a prime minister to be indicted because he seeks to cultivate a more friendly press?

As the current Netanyahu matter demonstrates, the Israeli legal system, with its peculiar role for the police, leaves elected officials unduly vulnerable to non-judicial determinations and political mischief that can undermine their legitimacy and credibility. This is a particular problem in a country like Israel with its fiercely competitive and fractious electoral system.