Friday, May 09, 2008

Let's summarize the basic facts and relevant legal issues in the latest Olmert affair.

At about 11:00 PM (Israel time), the police and the Justice Ministry issued a statement. (As always, read the original.) It's mostly technical stuff about the gag order but the key paragraph is this:

החקירה עוסקת בחשד לקבלת כספים שלא כדין, על-ידי מר אולמרט, במסגרת כהונתו הציבורית כשר התמ"ת וכראש עיריית ירושלים. על-פי החשד, התקבלו על-ידי מר אולמרט כספים בסכומים משמעותיים, מגורם או מגורמי חוץ, לאורך תקופה ממושכת, חלקם במישרין וחלקם בעקיפין

Briefly, Olmert is suspected of accepting money illegally from foreign sources over a long period of time. The word "bribes" is not used but the media have been using the word freely. Uri HaCohen Aharonov of Channel 1 claims that a senior police source told him explicitly that Olmert accepted envelopes filled with cash.

The police have gotten testimony from at least four sources. One is Moshe Talansky of Woodmere, who raised money on behalf of Olmert and many other organizations. Another is Olmert's trusted assistant of thirty years, Shula Zaken, who, unfortunately for Olmert, is known for keeping meticulous records. A third is Olmert's old law partner, with whom he has had an ongoing shady relationship and who is involved in all the open police files on Olmert, Uri Messer. The fourth is an unnamed senior politician associated with Kadima ("Deep Throat"), variously rumored to be Avraham Hirschson (because he has good reason to sing) or Shimon Peres (because you can't have a conspiracy without him). In addition, a number of Haredi makhers, who "did business" with Olmert have been questioned.

In his carefully prepared statement tonight, Olmert said a number of important things:

1. He admitted that he received money from Talansky but claimed they were campaign contributions. Olmert agrees that Talansky was passing on funds from others. (A key question is the identities of the donors and what interests they may have had.) Note carefully that he said that he didn't accept bribes and he didn't put money in his pocket. He did not say that he didn't break the law. He couldn't say this because, even if his story is true, he violated any number of campaign funding laws.

2. He said that the technical matters involving the campaign funds were dealt with by Uri Messer. In short, he threw his old friend Messer to the wolves. I can only assume that Messer has already done the same or will shortly. There is the matter of privileged information here, since presumably Olmert can argue that Messer was acting as his attorney.

3. Olmert admitted to receiving money from Talansky even after the last campaign in which Talansky was involved (Olmert's run for leadership of Likud against Sharon in 2002). Olmert's spin was that this was to pay off debts incurred in the campaign. Note that the older bribery investigations against Olmert revolve around payments made in 2003 and 2004, so the chronology is beginning to make more sense.

4. Olmert said that if indicted, he will resign. Note that he did not say he would suspend himself temporarily. This has crucial political consequences, as I'll explain.

To put matters simply, since Olmert all but admitted to violating campaign funding laws (and since just about everybody understands he's guilty of much worse than that), he is toast.

Legally, how does this play out?

According to Basic Law: The Government, a Minister or Deputy Minister, other than the Prime Minister, must resign if he has been convicted of a crime with turpitude and has exhausted all appeals. In the case of Deputy Minister Rafael Pinchasi of Shas, the Court ruled that he could not continue to serve as a Deputy Minister after he was indicted and before he even stood trial. Since the law quite explicitly says one thing and the court said another (this possibility is a special feature of the Israeli legal system), it is hard to know what is actually supposed to happen in future cases.

In any case, with regard to the Prime Minister, the law is that even a final conviction with turpitude is insufficient to force resignation; the Knesset then needs to vote no confidence in the Prime Minister. This is to preserve separation of powers; ultimately only the Knesset can bring down a Prime Minister, not the courts. Thus the Pinchasi ruling is inapplicable here (despite the unfounded contrary claim on Channel 1 tonight by a certain clueless law school dean, who makes a habit of sucking up to the Court). In short, if Olmert is brought down by the Attorney General or by the Court, it would be a tragedy; if the Court properly keeps its nose out of this and the Knesset fails to bring him down, it would be a farce.

So what are the possible scenarios?

1. Olmert declares -- or the Attorney General rules -- that Olmert is temporarily incapacitated ("nivtzarut zmanit"). Then the official substitute Prime Minister, Tzippi Livni, takes over automatically for a period of up to 100 days. Once 100 days have passed, it is as if the Prime Minister has resigned.

2. Olmert resigns or is incapacitated for 100 days. Then the President offers the Knesset Member most likely to be able to form a coalition of 61 MKs the opportunity to do so. If he or she fails to do so, and an alternate candidate also fails, we go to elections.

3. The Knesset disperses itself. Then elections are held within 90 days.

Note the crucial distinction between the PM suspending himself or being ruled temporarily incapacitated and the PM resigning. In the first case, Livni gets a free 100 days to establish herself as PM before having to either pull together a coalition or face elections. In the latter case, she doesn't get the 100 days. So Olmert's promise that he'd resign following an indictment has some significance.

The next big explosion will be when the identity of Deep Throat is revealed.


Anonymous zalman said...

Not so fast.

Olmert said that if indicted, he will resign. Nu, this is like the Winograd maneuver minus Barak.

Lets say an indictment takes months. In the interim, Olmert revises his resignation "offer" to: if indicted for bribery, he will resign. Then the indictment comes without a bribery charge.

Not so bad, right? And we certainly don't want Bibi. And elections are coming soon anyway. Oy, and he has cancer too. So stop being vindictive and leave the poor guy alone. I hear he might uproot a settlement or two. And did I mention Bibi?

2:42 AM  
Blogger evanstonjew said...

I want to know if Olmert is being charged with illicit activity AFTER he became Prime Minister?

Is Talansky a suspect ?

5:34 AM  
Blogger Ben said...

By all accounts, Talansky has not been involved with Olmert since Olmert became PM.

There are varying reports on whether Talansky himself is a suspect. He passed money from other people to Olmert, which was allegedly both above the legal limit and not reported. While this surely implicates the recipient, it is unclear what responsibility the giver bears.

10:43 AM  
Blogger Ben Bayit said...

Privileged communication between client and attorney IS admissible as evidence in the State of Israel. Certainly so when the client waives privilege and even when the attorney violates the privilege and testifies. Obviously at this point Messer wants to stay out of jail and isn't in the least bit concerned about his bar association standing and license. So what he says is admissible whether Olmert likes it or not.
Also if he's singing about anything that is ongoing it is not an ethical violation to reveal it as ongoing or future crimes are not covered by client-attorney privilege.

10:49 AM  
Anonymous zalman said...

my understanding from today's radio reports is that...
Talansky is not expected to be charged since he claims that he believed that he was making a legal campaign contribution.
His contribution may not have been illegal under election laws under Israeli law at that time. (I guess Olmert's failure to report is the problem.)
There is no privilege with respect to communications between a lawyer and client who participate in a crime together.

2:24 PM  
Anonymous zalman said...

my understanding from today's radio reports is that...
Talansky is not expected to be charged since he claims that he believed that he was making a legal campaign contribution.
His contribution may not have been illegal under election laws under Israeli law at that time. (I guess Olmert's failure to report is the problem.)
There is no privilege with respect to communications between a lawyer and client who participate in a crime together.

2:24 PM  
Blogger Ben said...

BB and zalman,

Thanks for the helpful info on privilege. There have been suggestions that Messer is a suicide risk. If I were a bit more paranoid than I am, I'd be especially worried about assisted suicide.

BTW, I emphasize Olmert's promise to resign not because I believe him but simply to point out that his choice of words suggests that he doesn't intend to help Livni.

2:52 PM  
Blogger Ben Bayit said...

Gosh, the picture in Wednesday's Makor Rishon of Messer standing in middle of the Ayalon freeway looking rather haggard and ragged, takes on a whole new meaning.

If Messer does indeed "disappear" then I'd have to lean towards Peres as DT, rather than Hirshezon who is the current favorite.

3:08 PM  
Blogger Tzemach Atlas said...

DT must know about Talansky, if this is not Talansky himself than this might be one of the original donors who used Talansky as a conduit and now is displeased with Olmert policies.

4:12 PM  
Blogger Ben said...

Deep Throat is a senior political figure linked to Kadima. The donors who used Talansky are also an important, and so far under-reported, part of the story.

4:19 PM  
Anonymous zalman said...

OK, lets be optimistic and count Sefirat HaOlmert.

11:50 PM  
Blogger Ben said...


11:57 PM  

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