(Jan. 22, 2021) On December 29, 2020, Israel’s High Court rejected outright a petition by current Prime Minister Binyamin Netanyau’s Likud party to open a criminal investigation against former Prime Minister Ehud Barak and the Wexner Foundation. (HC 3194/20 Likud v. Attorney General.) Ehud Barak is a political rival of Netanyahu.
The petition centers on the attorney general’s refusal to start a criminal investigation regarding hundreds of thousands of dollars paid by the foundation in 2004–2006 to Barak “for two research papers – one of which was never completed – while [Barak] wasn’t in politics.” According to the petitioner, however, at the time Barak received the payment he was politically active. The payment therefore raised the suspicion of Barak’s having committed fraud and breach of trust and of receiving a prohibited election contribution. (HC 3194/20 Justice Yosef Elron’s decision para. 2.)
The attorney general’s decision not to pursue an investigation was based on a determination by the Israel Police that at the time of payment Barak no longer served in public office and that, in any event, the statute of limitations would have applied to the alleged offenses. (Para. 3.)
According to Israeli media, “[t]he petition has echoed conspiracy theories circulated on social media – including by Likud – of an alleged left-wing interference by the US foundation in Israeli politics, which makes use of the fact that sexual predator Jeffrey Epstein used to work for it.” An outside review released in February 2020, however, concluded that “Jeffrey Epstein played ‘no meaningful role’ in the budget, finances or accounting practices of L Brands founder Les Wexner’s charitable foundation and wasn’t involved at all with its fellowship and leadership programs. … Wexner says he severed ties with Epstein 12 years ago.”
Scope of Judicial Review of Law Enforcement Authorities’ Decisions on Criminal Investigations
Rejecting the petition, Justice Elron held that there was no basis for judicial intervention in the decision not to start a criminal investigation, as the facts had not raised any reasonable suspicion for the commission of any offense. Elron stated that the “experience and professionalism” of law enforcement authorities entitles them to broad discretion in deciding whether to start a criminal investigation. The Court would intervene only in exceptional cases involving decisions that were based on “extreme improbability” or were affected by other “detrimental defects.” (Para. 10.)
According to Elron, the petitioner had not indicated any defect in the attorney general’s decision. General “hypotheses and assumptions“ that the funds were intended to serve the Wexner Foundation in the event that Barak returned to public life at a later time, Elron held, were insufficient in proving the “extreme lack of reasonableness” of the attorney general’s decision. (Para. 11.)
Concurring with Justice Elron, Justice Yitzhak Amit held that the petition failed to provide a minimal factual basis to support judicial intervention. He added,
[t]he petitioner took “Wexner Foundation,” added “Jeffrey Epstein,” sprinkled a fair amount of “convicted pedophile” and a pinch of “Lolita Express plane,” and poured Defendant 3 [Barak] onto all of that – thus creating a dish that brings to the courtroom the aroma of social media. The petition is composed of hints, slander and speculation. (Justice Yitzhak Amit decision para. 2.)
Justice Amit expressed mystification at the “hostile treatment” against the foundation reflected in the petition in light of the support it had received from top Likud party leaders over the years for its programs at the Harvard Kennedy School of Government, as indicated by recommendations made by Netanyahu and cabinet ministers for the participation of “outstanding [Israeli] public service officials.” (Para. 3.)
The Court ordered the Likud to pay the state, Barak, and the Wexner Foundation 5,000 new Israeli shekels (about US$1,550) each.