The first-ever criminal indictment of a former U.S president holds important lessons for the world and American allies.
America has both a written and an unwritten constitution. The written constitution, adopted in 1789, is interpreted and re-interpreted by the legislative, executive, and judicial branches, with the US Supreme Court having the final word on what the written words actually mean. The unwritten constitution is a much larger set of tacit precedents, understandings and balances struck to preserve peace.
Whatever the merits of the court case against former President Trump — America’s time-tested legal process will decide that — charging a former president has crossed a huge unwritten line in American politics and in American legal history.
To their credit, America’s courts have long tried and convicted politicians, at all levels, for crimes. But generally, prosecutors have pursued members of the rival party only when the evidence was so compelling that few, on either side of the political divide, debated the merits of their case. They treaded carefully, lest they be accused of bias.
America’s founding fathers enshrined the doctrine of “separation of powers” into the constitution. This was designed to prevent many abuses, including allowing a temporary political majority from prosecuting the minority party in the criminal courts. The customs of prosecutors emerged from the structure of the constitution itself.
President John Adams insisted that America must be “a government of laws and not of men,” enshrining a principle of political neutrality of the courts.
Since the birth of the United States, successive presidents have ensured that a neutral judiciary interprets and enforces laws passed by the legislature and implemented by the executive branch.
It is this America that we love and that inspires confidence in the whole world; the principles of justice, equality and the rule of law must remain the basis of judicial action, with everyone presumed innocent until proven guilty and no one above the law.
The whole world is watching and it’s a history lesson that no longer belongs to just Americans but concerns the whole world — especially Israel at this very moment.
Now, let’s consider Israel and its own unwritten constitution.
While the US-Israel relationship is often described as an “unbreakable bond,” rarely has the tension been so palpable between the US and the Israeli governments. Of course, over the years, American presidents and Israeli prime ministers have not always seen eye-to eye. But disagreements were usually expressed in private, because the United States considered Israel to be an exceptional ally like no other and accepted that it must remain so.
Ever since Israel’s declaration of independence in 1948, all of the tenants of the White House agreed that the futures of the US and Israel are connected, interlocking, and ultimately joined up.
First, among most Americans, it is agreed that the Holocaust, with its ignored warnings and abominable extermination of millions of Jews, is a tragedy that can never be allowed to be repeated. So, at its birth, the State of Israel was recognized and supported, and America’s commitment to Israel was bipartisan, continuous and enthusiastic. This commitment honors America.
Second, and this is of paramount importance, Israel was and remains the only democratic society in the region that adheres to the values claimed by the United States to exercise its leadership over the free world.
The Netanyahu government risks breaking this tacit pact.
If Netanyahu’s current policy, inspired and fueled by his far-right coalition partners, buries any political solution with the Palestinians, it is not the only cause of the current crisis with the United States. Netanyahu has already followed the same policy in his previous governments and the remonstrances of American presidents—Clinton and Obama–have very rarely been aired openly.
This time, President Biden spoke publicly on a matter of Israel’s domestic policy.
This is simply unprecedented in the relations between the two countries. It is a very public disagreement with an Israeli leader and it concerns a matter of its court system. Israel’s proposed legislation would weaken the judiciary’s independence in numerous ways, but most significantly it would reduce the Supreme Court’s powers to check and balance government actions. It will threaten Israeli cohesion and national security as Israel faces significant threats from Iran and its proxies in Syria, Lebanon, Yemen, Iraq and now in North Africa.
Instead, Netanyahu must find a way forward, and he can do it by continuing down the wise trail that he himself helped blaze with his Arab neighbors– the Abraham Accords.
Returning to the spirit of these agreements, which enlivened the idea of shared prosperity, would unify Arab countries and break the resistance of those who were skeptical of the agreements with Israel, while nurturing an Arab public opinion favorable to Israel.
That is Netanyahu’s real challenge and if he can resolve it, it would cement his historic legacy. He should not be distracted by small reforms that can destroy not only any idea of peace and prosperity in the region but also threaten the strategic relationship with the United States.