Israeli Analyses: Netanyahu's Request for Pardon is Not Legal but Political

SadaNews - Israeli President Isaac Herzog cannot issue a pardon for Prime Minister Benjamin Netanyahu after the latter submitted an official request in this regard yesterday, Sunday. According to analysts in Israeli newspapers published today, Monday, this request is not a legal step, but a purely political one.

Legal expert Professor Mordechai Kremnitzer stated in the newspaper "Haaretz" that "under the law, the President has the authority to pardon offenders and mitigate their punishment by reducing or replacing it. However, the Prime Minister insists on his claim that he is innocent of any guilt, meaning he is not a criminal. The President does not have the authority to pardon someone who has never been convicted. A pardon in the absence of guilt and violation is a contradiction."

He added, "There is no place to consider the request, and it should be rejected, because this is not a request from someone who has committed a violation, and also because the authority to pardon is not a goal that can be used as a substitute or barrier against existing judicial procedures that are at their peak."

Regarding U.S. President Donald Trump's request from Herzog to issue a pardon for Netanyahu, Kremnitzer stated that it was the latter who planned it, "and this is clear from Trump's statements and Netanyahu's request." However, Kremnitzer pointed out that "the Prime Minister, who is the head of the executive authority in Israel, is conspiring in a disgraceful manner against Israel's sovereignty and against the independence of its law enforcement system by calling for foreign country intervention in domestic judicial procedures. In doing so, he corrupts them in an irreparable way. Can President Herzog entirely ignore the demands of the U.S. President as if they did not exist, as he is obligated to do?"

Kremnitzer continued, "It is hard to imagine a deeper and more dangerous conspiracy against the rule of law than having another authority that can nullify a judicial procedure at its peak with a stroke of a pen, especially since this is a political authority and not a professional one, and its considerations are not only legal considerations. Herzog could, and should have, clarified in advance the limits of his authority."

The legal expert referenced the case of issuing a pardon for officials in the Shin Bet regarding the "Bus 300" case, who were accused of killing Palestinians after capturing them following an attempted bus hijacking between Haifa and Tel Aviv, and noted that former Israeli President Chaim Herzog, the father of the current president, pardoned the head and members of Shin Bet who committed the crime.

However, Kremnitzer considered that there is no connection between this pardon and the one requested by Netanyahu, because the Shin Bet officials "did not claim innocence, and the pardon was issued before legal proceedings were taken against them, and was effectively issued under duress, and through the threat of exposing similar crimes. The ruling issued by most of the judges of the judicial panel, which decided not to intervene in the President's decision, received severe criticism."

Kremnitzer indicated that "Netanyahu has not backed down from his demand for pardon regarding the serious charges directed at the law enforcement system for fabricating cases against him in order to oust him from power. He reiterated this in his message requesting a pardon. The reconciliation (in the divided Israeli society) he is working towards is based on completely rolling back the charges. Netanyahu has claimed that he is totally innocent and that the system has acted against him criminally. It is clear that after receiving the pardon, his close associates will work to remove the law enforcement officials who fulfilled their duty."

He added that "the factual assumptions on which the court relied in its decision to allow Netanyahu to remain Prime Minister despite the charges against him have been shown time and again to be unfounded. We can only hope that Herzog is not obligated to Netanyahu and will not cooperate with a step that cannot be forgiven, which undermines the rule of law."

Pardon as a Political Step

According to political analyst Nahum Barnea in the newspaper "Yediot Ahronot," the pardon request submitted by Netanyahu to Herzog "is not a judicial step but a purely political one, and is legally questionable. The pardon request is the first step in negotiations, in which President Herzog is supposed to play a central role. The goal is to reach an agreement that leads to the end of the trial, either through a deal with the prosecution, a pardon, or a combination of both."

Barnea noted that "Herzog has searched throughout his political life for the middle ground, the golden path, and the bridge, even when there was no middle ground, no path, and no bridge. I believe that most Israelis will feel relieved when they see this nightmare end, some because they are convinced that a case has been fabricated against Netanyahu, and others because they see the court weekly in its weakness and inability and its disgrace."

He added, "The question is what Netanyahu will offer in return. According to his message and his lawyer’s message (to Herzog), he is not prepared to offer anything in the meantime. Perhaps, if Israel behaves well, he might agree to pardon it after dragging him to court and hindering him from saving the country and the world. Netanyahu is not requesting a pardon; he is granting it. Indeed, the word pardon does not appear in his message."

Barnea wondered how Herzog would deal with this starting point, pointing out that there are three possibilities before him and the pardon circle in the Ministry of Justice. "The first is to clarify that a pardon is not on the table, and that the legal conditions have not been met; the second is to give Netanyahu everything he asks for and pray that the Supreme Court does not reject the pardon; and the third possibility is to insist that Netanyahu step down in exchange for the pardon and demand an acknowledgment of guilt from the accused, because Herzog is not acting here as an arbitrator, mediator, or lawyer, but as the decision-maker, and his decision will accompany him until his last day."

He added that "if Netanyahu truly wants to heal the divisions in Israeli society, the service he can provide to the society is to step down. And if not because of the trial, then because of the failure of October 7, and because of the ongoing war, and because of the insanity of the coup against the judiciary, and because of introducing Kahanism to the holiest of the state. Ending the trial by stepping down would correct something; ending the trial while Netanyahu and his associates remain in their positions will deepen the rift and despair."

Barnea considered that "Netanyahu does not intend to resign. On the contrary. He emphasizes in his request the necessity of dedicating all his time to his government term. A pardon for the position. That is the summary of his request. And this is not suitable for a state of law."

He noted that "the political front, at the beginning of an election year, is fundamental. If Herzog grants him a full pardon, Netanyahu will be freed from the trial and prove to his camp's voters that he is capable of anything, and on the waves of victory, he will rush to the elections. The sound of the pardon will override party lines; this is crucial in an election campaign. And if negotiations blow up, the blame will always be directed at the accusers: the public prosecutor, the media, protests, Herzog. Netanyahu will hasten to elections donning the victim's role."

There is another theory that perhaps Herzog is convinced of, according to Barnea, which states that a "comprehensive deal can be reached, including a pardon, lifting the stigma, continuing Netanyahu's term, but stopping the coup against the judiciary and canceling the dismantling of the position of the government legal adviser and not toppling Barav Miarra. Levin and Rotman will calm down or disappear, and Ben Gvir and Smotrich will be thrown into the opposition. And Netanyahu, according to this theory, joined the coup against the judiciary out of revenge for his trial. Without a judicial cloud over him, he will return to the roots."

However, Barnea ruled out the realization of this theory. "Perhaps Netanyahu can adapt, but the genie he released from the bottle will not disappear. The situation he has created is stronger than him. The Kahanists who have taken over the government and the coalition and infiltrated the Likud’s central committee will not yield."

He continued that "the model for Netanyahu is Trump, his master, who pardoned drug dealers, rapists, murderers, and criminals who attacked Congress, and Netanyahu sees how he publicly belittles his predecessor (Biden) and mocks the law and receives public hypocrisy. Netanyahu seeks to follow in Trump's footsteps."