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Netanyahu Trial Could Have Lessons for Trump Lawsuits

Bloomberg logo Bloomberg 5/27/2020 Noah Feldman

(Bloomberg Opinion) -- As the U.S. Supreme Court decides whether Donald Trump’s tax returns can be released to New York state prosecutors, an experiment in investigating and prosecuting a head of government is taking place across the ocean. On Sunday, Prime Minister Benjamin Netanyahu appeared in an Israeli court for the beginning of a criminal trial in which he is the defendant.

Netanyahu’s trial is obviously a watershed in Israeli politics. Previous prime ministers charged with wrongdoing there had stepped aside rather than remaining in office while facing charges.

But Americans may also want to keep an eye on the trial for what it might teach us about a constitutional question that has received a lot of attention during Donald Trump’s presidency: whether a sitting president can be subject to criminal prosecution.

Of course, Israel has a parliamentary system of government, not a presidential one. It lacks a single, written constitution. It doesn’t have a federal system. Any lessons for U.S. constitutional law will be indirect.

Yet Netanyahu’s example could still be highly instructive. That’s because so much of the constitutional debate in the U.S. over prosecuting the president has turned not on jurisprudential abstractions but on the question of whether a head of state charged with a crime would be too distracted to perform the duties of his office.

Indeed, that issue was central to the Supreme Court’s reasoning in the Clinton v. Jones case, which was about whether a civil suit could be brought against the president for conduct that took place before he became president.

The majority opinion, written by Justice John Paul Stevens, said that the court “had no dispute” with Bill Clinton’s argument that his “responsibilities were so vast and important that the public interest demands that he devote his undivided time and attention to his public duties.”

Nevertheless, Stevens wrote, this concern wasn’t sufficient to overcome the interests of the judicial branch in seeing justice done and making sure the president was not above the law. In one memorable passage, the opinion said that “as for the case at hand, if properly managed by the District Court, it appears to us highly unlikely to occupy any substantial amount of [the president’s] time.”

Justice Stephen Breyer wrote a concurring opinion that reads very much like it was originally intended as a dissent. He was less sanguine than the majority about the danger that litigation could engulf the presidency, cautioning that “it may well be the trial of this case cannot take place without significantly interfering with the President’s ability to carry out his official duties.” Yet in the end, Breyer agreed that Paula Jones’s lawsuit could go forward.

Bill Clinton famously did find his presidency overwhelmed by the investigations that grew out of the Jones lawsuit, including the eventual revelation of his affair with Monica Lewinsky. This experience is often thought to prove that the Supreme Court got it wrong, and that even a civil trial can be such a distraction that it interferes with the president’s duties. Surely, that argument goes, criminal charges would only make it even harder for the president to do his job.

Netanyahu, however, seems to believe that he can do the job of prime minister just fine even while on trial for a criminal charge. In the months ahead, the world will find out whether that is so.

It’s worth remembering that Clinton’s troubles resulted from more than just the Jones lawsuit. As for what really distracted Clinton, it may have been the impeachment process as much as anything — and impeachment is a constitutionally mandated process that cannot be delayed no matter how distracting it is.

There is some danger that a president or prime minister could delegitimize the criminal justice system should he criticize it during his trial. Netanyahu certainly has no qualms about attacking the fairness of Israel’s criminal justice system. Yet as Trump has shown, even a president not facing criminal charges may use his bully pulpit to attack legal and judicial institutions.

When the criminal justice system is actually able to bring charges against the most powerful government official in a country, it sends a powerful message: no one is above the law. And in the case of a prime minister who has served for many years, or a president who is so politically secure that he cannot be removed from office even when impeached, there may be no other way to send that message.

The Netanyahu trial could also show that putting a president on trial does radically interfere with his ability to do his job. The trial may become a political football. It may push Netanyahu to take all kinds of policy actions that he wouldn’t otherwise undertake. It may make it almost impossible for the government of Israel to avoid the claim that its actions — including security-related actions — are meant to distract attention from the trial.

Either way, the lessons will be relevant to the ongoing debate in the U.S.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Noah Feldman is a Bloomberg Opinion columnist and host of the podcast “Deep Background.” He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”

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