Netanyahu trial: Key witness violates protection deal, may be prosecuted

The Economic Crimes Division Prosecution on Monday announced a shocking decision to declare Shlomo Filber, a former top aide to Benjamin Netanyahu and the state’s witness against the prime minister, in violation of his immunity deal.

Prosecutor Yonatan Tadmor, in consultation with the attorney general and the State Attorney’s Office, said he would prosecute Filber subject to a pre-indictment hearing. This could change the entire character of the media bribery and fraud trial against Netanyahu.

This means that one of the prosecution’s top witnesses cannot be trusted, which could undermine its case against the prime minister and end the possibility of a bribery conviction, leaving only lesser charges intact.

In fact, in informal talks, the court previously suggested that the prosecution drop the bribery charge and focus on lesser charges, which it rejected.

Still, its decision to charge Filber could be an acknowledgment that his testimony tanked the bribery charge.

Conversely, the prosecution could still perform a tightrope walk where it would convince the court to believe Filber’s anti-Netanyahu testimony but not his pro-Netanyahu testimony.

This would be a difficult pitch but it might hold water, given that Filber gave an extensive confession to police in 2018 about how he hadn’t told the truth against the prime minister, as though out of a trance.

So, by the time Filber testified in March 2022, he already believed that Netanyahu would return to the premiership and that the prosecution’s case against him and Netanyahu was weaker than it was in 2018, when he cut a deal.

Netanyahu’s team will argue that Filber’s attacks were to “save his skin” and that once he got deep into direct examination and cross-examination, he returned to tell the truth.

The issue has been an open question since Filber’s March testimony. At the time, the Jerusalem District Court authorized the prosecution to cross-examine him as a hostile witness but without formally declaring him as such.

Previous tug-of-war between Filber and Prosecutor 

State prosecutor Yehudit Tirosh requested that the court make a formal declaration that Filber hadn’t cooperated sufficiently with his plea deal. If the court were to have granted the request completely, Filber could have lost his immunity from jail.

The decision essentially gave the prosecution what it wanted: stronger legal tools for cornering Filber into sticking to their narrative, but still a step away from threatening him with jail time.

During cross-examination, a lawyer may ask leading and aggressive questions, unlike standard questioning, where there are significant limits on tactics and phraseology. Still, the prosecution reserved the right to try to indict Filber at a later date and send him to jail should he fail to cooperate.

Nevertheless, it is unusual to declare a witness in violation of their state’s witness agreement – two years after they finished testifying.

It is doubtless that Filber will seek court intervention and raise this very point to prevent the prosecution from indicting or convicting him.

Back in 2022, the very fact that the prosecution asked to declare him a hostile witness essentially told the court it believed he was lying to cover for Netanyahu.

This went beyond the earlier days of hearings with Filber, when there was a tug-of-war between Filber and Tirosh. The prosecution tried to hint more lightly to the court that Filber’s statements to police were his truest account.

What broke Tirosh’s patience with Filber was that he tried to act like he did little wrong with his back-channeling with Bezeq officials – behind the back of his own Communications Ministry officials – to help them with the Bezeq-YES merger. This merger was at the heart of the Case 4000 media bribery charges.

When Tirosh confronted Filber for his repeated admission to the police that his Bezeq deal was “not proper,” Filber still tried, awkwardly, to explain that he only meant that it was vaguely unethical, not criminal.

At one point, Judge Rivkah Friedman-Feldman’s frustration with Filber grew when he would not take a clear stand on what he meant regarding whether the back channel was criminal. Shortly after, Tirosh asked to declare Filber a hostile witness.

The moment this was declared, a commotion could be heard in the courtroom at the time, with all the defense lawyers jumping up to object, calling it “dangerous.” The judges called for a recess for all sides to weigh their next moves carefully.

During the recess, Filber quickly stepped over to Tirosh, pleading with her to back off. Tirosh waved him off.

It was also possible that Tirosh would hold the immunity deal over Filber to get him to cooperate more going forward, and that trying to declare him a hostile witness was a final warning.

After Tirosh lost patience with him, Filber even asked the judges if he could withdraw the answers he had given that had angered her.

Filber has already testified that he had extensive back-channeling with Bezeq officials in 2015-2016.

Tirosh asked Filber why he withheld this information from then-deputy attorney-general Dina Zilber, as she was probing at the time whether he and Netanyahu were violating conflict of interest principles.

Zilber did not yet know anywhere near the extent of the Netanyahu relationship with Bezeq and Walla owner Shaul Elovitch.

 Zilber understood their friendship well enough to question whether Netanyahu should resign as communications minister, which he was eventually forced to do.

It could be considered criminal for Filber to mislead Zilber and withhold this information as part of a Netanyahu-Filber plot to hide the media bribery scheme.

However, once Filber repeatedly tried to avoid calling his withholding from Zilber a criminal act before the court, Tirosh decided that his responses, along with other answers he was giving in court that contradicted his testimony to police, had gone too far.

Finally, the court decided not to declare Filber a hostile witness when the defense lawyers agreed that the prosecution could question him using cross-examination techniques as if he were a hostile witness.

This move was not ideal for the defense, but they made it clear to the court that it was preferable over the prosecution and the court declaring Filber a hostile witness.

The defense explained that it wanted to attack Filber as a hostile witness against Netanyahu and Elovitch and did not want the prosecution to be able to cloud their attacks.

After this, Filber was much more cooperative with the direction that Tirosh wanted him to take, although he still gave some answers that made her uncomfortable.

Filber also noted several important events and turning points in his testimony. He told of a late-night meeting with Netanyahu and a mystery person, never identified, during which Filber gave a survey of the Israeli communications market. He also testified about an infamous “wine and cheese” meeting he had with Elovitch when they reached deals on many issues concerning Bezeq.

He testified that even when Tzachi Hanegbi took over as communications minister from Netanyahu, he still handled Bezeq issues under the cloud of Netanyahu’s orders.

Filber said he did not feel free to act independently until May 2017, when Ayoub Kara replaced Hanegbi.

The Netanyahu case has not been prominent in the news since the start of the current war, but after three years, the prosecution’s case is almost concluded, and soon the defense’s case will start.