President Donald Trump and Israeli Benjamin Netanyahu meet today in the White House as a critical moment for both leaders. It is not just a common interest in Middle East peace that they have in common in this meeting. Both men now have key aides who have been cooperating witnesses for prosecutions investigating allegations of wrongdoing. While there is still not direct evidence implicating Trump, Netanyahu is facing a serious threat of indictment, particularly after his former key aides, Nir Hefetz and Shlomo Filber have agreed to testify against him. These witnesses are far closer to Netanyahu and are cooperating on criminal cases directly linked to Netanyahu — as opposed to the collateral crimes thus far addressed by the Special Counsel. One other difference is the respective Constitutional issues. As I discussed recently, Israel has long accepted that a Prime Minister can be indicted in office. I believe that the same is true for a president, but there is a long and good-faith debate over the question.
Netanyahu is facing an expanding corruption scandal and is expected to be indicted. Part of the investigation centers on his pushing regulations worth hundreds of millions of dollars to Israel’s Bezeq telecom company in an alleged quid pro quo for favorable coverage. There are also allegations of corruption due to alleged gifts to Netanyahu and his family. The gifts amounted to an alleged $280,000 in value. Netanyahu’s allies have declared the investigation to be as “witch hunt.”
Former Trump aides like Flynn, Gates, and Papadopoulos are now cooperative witnesses for Special Counsel Robert Mueller. Moreover, it was recently disclosed that Mueller has demanded communications with Trump going back years as well as figures like his personal attorney Michael Cohen.
As I discussed earlier, many countries allow a chief executive to be indicted in office and there is a distinction between impeachment and indictment. There is one point upon which constitutional scholars uniformly agree: The best course in dealing with a felonious president is to first remove the president from office through the impeachment process and then indict the former president in the wake of the Senate conviction. That is no favor to a president. Impeachment is not subject to the rules of criminal procedure and does not include most of the due process protections afforded to criminal defendants such as evidentiary protections and prohibitions against hearsay evidence. It can also undermine a criminal defense in a later prosecution by inducing statements from a president that could later be used against him in a criminal trial.
However, there is no immunity expressly granted by the Constitution and there is nothing in the Constitutional Convention that directly supports such a sweeping immunity.
While I have long been critical of Israeli constitutional system (that lends itself to the control of small parties), this is a circumstance where Israel has the right approach to the problem of an alleged felonious executive. Once again, I still do not see case for either collusion or obstruction against Trump though I have always recognized that Mueller may still have evidence to reveal. The issue remains thankfully abstract for now. However, the timing of the meeting could not be more poignant.