If you’re a news junkie – and who isn’t these days – then you know that one of the biggest questions surrounding the probes into President Donald Trump’s 2016 campaign is whether a sitting president can be indicted.
Apparently, the Constitution is silent on the subject, leading many pundits to conclude that he can be.
Others, however, site the Justice Department’s policy that a sitting president is simply too busy with matters of state to face criminal prosecution. That leaves one wondering whether a president can run out the clock on the statutes of limitations or if time stands still until his term is up?
Indicting a head of state, in this country at least, is a legal quagmire through which judges and lawyers are still finding their way.
But in Israel, the law is clear, though somewhat schizophrenic. Basic Law, as it is called, clearly permits the indictment of a prime minister – the head of the government – but just as clearly prohibits an indictment of the president – the ceremonial head of state.
According to Lawfare, a blog about national security issues published by the Lawfare Institute and the Brookings Institution, article 17 of the Basic Law of Israel says that an investigation into a PM must be approved by the attorney general. If the probe produces grounds for indictment, then the AG may do so.
“Like any other Knesset member, the prime minister may then request the Knesset to grant him immunity from criminal indictment under Article 4 of the Immunities, Rights and Obligations of Knesset Members Law, 1951,” Elena Chachko, a Doctor of Laws candidate at Harvard Law School, wrote in a March 2 article for Lawfare. “If the prime minister is indicted and is not granted immunity, he or she will face trial in the Jerusalem District Court.”
In recent years, authorities have stopped short of prosecuting a sitting prime minster. Ehud Olmert, PM from 2006 to 2009, who was convicted of breach of trust in 2012 and of bribery in 2015, left office before the attorney general indicted him.
Similarly, in the case of Moshe Katsav, the eighth president of Israel, who faced rape charges, the president resigned from office in 2007, two weeks before his term was up, as part of a plea bargain. (Katsav later rescinded the deal, fought the charges, was convicted and went to prison).
It is not clear what authorities might do about the current prime minister, Benjamin Netanyahu, who, together with his wife Sara, face corruption charges. So far, Netanyahu has not been charged, though police have recommended that he be indicted for bribery and other offenses.
Police recommendations do not necessarily lead to indictments, legal experts note. And the case against Netanyahu is made murkier by the dangerous situation along the northern border with Lebanon where the Israel Defense Forces have discovered at least four tunnels dug by Hezbollah under the frontier into the Galilee – a clear violation of Israeli territorial sovereignty.
Should a sitting prime minister be indicted when the country is facing a grave situation?
Regardless of the answer, the Israeli system of justice has two lessons for the U.S. system:
1) A head of state – current or past – can be indicted, even convicted and jailed, and the nation will not implode. Just the opposite, Israel’s experiences with Katsav and Olmert reflect the strength of her democracy.
2) Unlike Israel’s Basic Law, U.S. federal law is deficient in that in that it does not adequately state what to do with a president suspected of criminal offenses. Impeachment, which contains no penalties beyond removal from office, simply isn’t enough. A president could avoid prison time for an offense that would otherwise warrant it.
These are difficult days for American justice with vocal critics on all sides. We’ll get through it, but when we do, we should revisit our statutes to make sure this never happens again.
(Lee Chottiner is editor of the Jewish Louisville Community.)
