Presidential Pardon, Plea Bargain, and the October 7 Commission: Two Processes Where Law and Politics Intersect

Our partner, Adv. Maxim Rakov, former Legal Advisor to Israel’s National Security Council, addressed two issues in which the legal and political systems are once again coming into contact: President Isaac Herzog’s mediation efforts in the case of Prime Minister Netanyahu, and the High Court of Justice’s demand that the government submit a plan for investigating the events of October 7.

President Herzog has suspended his decision on the pardon and offered the parties his services as a mediator. What can realistically be negotiated in a situation like this?

The President’s actions here fall outside his formal pardon authority: he has put the request itself on hold and offered informal mediation, the idea being to bring the parties to the table to see whether they can reach an understanding. What is on offer is what we call a plea bargain: the prosecution and the defense agree to amend the indictment, the defendant pleads guilty to part of the charges, and the parties jointly ask the court to enter the agreement as its judgment. The court is not bound to do so, but in the overwhelming majority of cases it accepts what the prosecution and the defendant have agreed.

In this particular case, the prosecution will in all likelihood insist on three elements: an admission by Netanyahu to a number of offenses; a judicial finding that those offenses involve moral turpitude (a designation under Israeli law which, once attached to a conviction, bars the convicted person from holding elected office and a range of public positions for seven years); and either his resignation or a commitment not to stand for another term.

Is the moral turpitude finding a non-negotiable element of such a deal?

I do not believe the prosecution would settle for anything less. Had it been prepared to compromise on this point, an agreement would have been reached years ago. Without a finding of moral turpitude, the Prime Minister retains the option of continuing his political career, and that is precisely what he is most determined to preserve. Tellingly, even in the pardon request itself he did not concede guilt: the text states that he did nothing unlawful. In those circumstances, the President cannot grant a pardon, even as a purely formal matter.

With around six months to go before the elections, how much time does the President have to keep these contacts running?

The President is under no time constraint and can extend the process for as long as he sees fit. The case continues in parallel; the prosecution does not pause its work. There are several possible readings of the line the President has chosen. One is that he is counting on Netanyahu, at some point, deciding for political reasons not to stand again, after seeing in the polls, for example, that the election is unwinnable, and preferring to step down undefeated. Another reading is that the President does not want a refusal of the pardon, taken now, to be perceived as a political decision, and is deliberately positioning himself as a neutral mediator.

As the process continues, each side may come to see that its position is weaker than it had assumed. Even so, it will be extremely difficult for the prosecution to drop the moral turpitude element altogether: doing so would call into question the very foundation of a case that has been running for six years and that involves serious charges, including fraud and bribe-taking by a sitting Prime Minister.

In parallel, the High Court of Justice has required the government to submit, by July 1, a plan for investigating the events of October 7, while not insisting specifically on a State Commission of Inquiry. How do you read that approach?

Any decision the High Court takes here will be read as political. If the Court orders the government to appoint a State Commission of Inquiry specifically, this would be a serious encroachment on the government’s powers, and I am inclined to share that view. If the Court declines to intervene, that too will be read as political, in the sense of allowing the government to do as it pleases. The Court does have the authority to step in, and has confirmed as much on a number of occasions in similar situations.

The situation is complicated by the fact that elections are six months away. Were this question being decided two years ago, while events were still fresh, the unique character of October 7 and the scale of the failures it exposed across state systems might well have justified active judicial intervention. As things stand, the question of whether or not such a commission is established will inevitably become one of the central themes of the campaign, and voters will have the opportunity to weigh in at the ballot box.

The government, for its part, says it is ready to investigate, but proposes a different model: a parity commission, half drawn from the coalition and half from the opposition, which it argues would be perceived as independent. Such a model is not perceived as independent; in effect, it amounts to two commissions in one. The Court is well aware that any ruling it issues on the eve of an election will be politically charged. For that reason, it has, for now, deferred the matter and given the government time to clarify what kind of commission it intends to establish. Under the present circumstances, that is, on balance, the least bad of the available options.