Prosecuting Political Foes Is Incompatible With Democracy

These are heady times for those who hate both Donald Trump and Benjamin Netanyahu. The news that Manhattan District Attorney Alvin Bragg had persuaded a grand jury to indict the former president was greeted with chortles of satisfaction from the Jewish left, which was already celebrating the recent setback suffered by the Israeli prime minister after he put judicial reform on hold.

Trump being booked in New York is not only being celebrated by those who call Netanyahu "crime minister" because of the long-running legal case on corruption charges that he has been fighting in and out of the courts for years. It has also allowed them to see the pair, despite the obvious differences between the two men and the legal stratagems that have been deployed against them, and their predicaments as part of a common struggle against what Haaretz called the way they both attack their respective countries' democratic institutions.

To the left, that's the important point.

Their claim is that both Trump and Netanyahu are enemies of democracy. That makes achieving their downfall not so much a matter of alleged wrongdoers getting their comeuppance but can be portrayed as a righteous cause in which threats to the common good are eliminated by lawfare. In that way, even the flimsiest of charges or the use of tactics that target an individual rather than enforcing the law is normalized rather than condemned as violating legal ethics. Actions that would easily be seen as an abuse of power are justified because of a supposedly higher purpose to the prosecution.

As different as the cases against Trump and Netanyahu are, what they have in common is that both men are political leaders being singled out by prosecutors for charges that weren't so much tailored to their circumstances as they were invented for the sole purpose of taking them down.

The cases against Trump and Netanyahu

The indictment of Trump is driven largely by a novel legal tactic focused on his alleged payment of hush money to porn star Stormy Daniels. While such actions are deplorable, they are not illegal; nevertheless, it's being treated as a form of fraud because it is considered an unreported campaign contribution. This is an absurd argument that has never been successfully used against any politician and is unlikely to withstand scrutiny by higher courts even if the deep-blue courts of New York City railroad it through. It's possible that Trump's businesses have also been scrutinized for some possible illegal behavior in ways that practically no other New York real estate firm has been treated.

Other charges that may be pending against Trump in either the District of Columbia, where he might be charged for inciting the Jan. 6 Capitol riot, or in Georgia, where he is accused of trying to swing the 2020 presidential election in his favor by looking for more votes, may have more merit. Still, both of those cases run afoul of other pitfalls, such as the fact that even foolish or bad speech isn't normally treated as criminal.

But while Trump is a singular figure who has shattered all sorts of precedents, both good and bad, the only reason any prosecutor is looking for a way to charge him is because he's a hated political foe.

The same is true of the charges against Netanyahu, even if the person ultimately responsible for the case –former Attorney General Avichai Mandelblit– was a former supporter turned political enemy.

The willingness of so much of the chattering classes to justify attempts to jail political opponents is antithetical to the survival of democracy in both countries. Contrary to the claims of their detractors, the legal wars against Trump and Netanyahu are not a matter of demonstrating that no one, no matter how powerful, is above the law. In fact, both men are being treated as if they are below the law.

The three cases against him that are being tried in a Jerusalem District Court have, if anything, even less substance to them than the ones against Trump. One concerns his acceptance of expensive gifts of champagne and cigars from admirers, though the notion that doing so constituted a breach of trust or fraud is absurd. The second involves discussions between the prime minister and the publisher of the hostile Yediot Achronot newspaper in which Netanyahu suggested that he might support legislation that undermined the Israel Hayom newspaper (Yediot's pro-Netanyahu competition) in exchange for favorable coverage. The prosecutors involved labeled that a "breach of trust" but, here again, it's not clear what existing law the conversation (which led to nothing) broke. The third charge sounds more substantial since it alleges that Netanyahu traded regulatory decisions that favored the Bezeq Company for favorable coverage on its Walla news site. But since Walla remained critical of the prime minister, the claim that it was bribery lacks substance. Even if the outlet had changed its tune, here again, there is no law in Israel that states that obtaining favorable coverage is bribery.

As with the complicated attempt to use the Stormy Daniels affair against Trump, Netanyahu's foes don't care that the cases against him lack substance. They believe him to be a criminal simply because he is a hated political foe who is difficult to beat at the ballot box. If it takes cases in which a man will be convicted of violating laws that don't actually exist on fake claims of fraud, that's OK because they see it as similar to charging Jazz Age crime boss Al Capone with not paying his taxes rather than for murder.

The difference is that Capone really was the head of a criminal enterprise. Dislike or disagree with them all you want, but Trump and Netanyahu are not criminals. They are political opponents. And so, their foes justify using the legal system against them because they claim they are enemies of democracy against whom the normal rules of political conduct cannot apply.

The real threat to democracy

In recent years, one of the standard talking points of the political left in both Israel and the United States has been to state their fears about an alleged war on democracy being waged by their political rivals. In the United States, the claim that Republicans were "semi-fascists" and bigots who had to be defeated in order to save democracy was a rallying cry for Democrats in the 2022 midterm elections. In Israel, in the past three months, hundreds of thousands of opponents of Netanyahu have also been employing the same kind of hyperbole about saving democracy. They believe that the stakes are sufficiently high to justify blocking highways and sabotaging their country's economy and national defense purportedly to stop judicial reform legislation, but whose main purpose appears to be toppling the government.

The arguments in favor of their opposition to judicial reform don't stand up to scrutiny and, when stripped down to their essentials, amount to a belief on the part of many Israelis that the nationalist and religious voters who favor Netanyahu and his allies can't be allowed to govern. That is why even people like opposition leader Yair Lapid and others in his camp –once ardent critics of the out-of-control and essentially lawless Israeli Supreme Court– now oppose judicial reform.

The claims of Democrats that Republicans oppose democracy because of differences over voter integrity laws are just as lacking in substance. Trump may be deserving of criticism for not accepting the legitimacy of election results, yet the willingness of Democrats to shamelessly sabotage his administration with conspiracy theories about Russian collusion, and to use their media and Big Tech allies to silence negative stories about the Biden family corruption in 2020, shows that they are just as guilty of behaving badly in pursuit of political power.

That's why we should ignore the claims that the defense of democracy requires political prosecutions.

On the contrary, the willingness of so much of the chattering classes to justify attempts to jail political opponents is antithetical to the survival of democracy in both countries. Contrary to the claims of their detractors, the legal wars against Trump and Netanyahu are not a matter of demonstrating that no one, no matter how powerful, is above the law. In fact, both men are being treated as if they are below the law.

Such prosecutions only serve to undermine public confidence in the justice system. They convince supporters of those charged that there is a two-tiered system where political foes not favored by the legal apparatus are treated differently.

No matter what they think of the two men, Israelis and Americans who care about preserving democracy should be hoping that the cases against Trump and Netanyahu end as quickly as possible with neither man being convicted. The alternative is a scenario in which democracy, which relies on both sides accepting each other's legitimacy, is in real jeopardy of failing. The real threat to it doesn't come from conservatives in either country. It can be found in a political culture that has been embraced by the left that is willing to stop at nothing to crush opponents.

© Gatestone Institute