Court splits ruling on police checking phones of Netanyahu’s PR people

Ruling to have explosive political impact.

By YONAH JEREMY BOB
Shlomo Filber, the suspended director-general of the Communications Ministry, waits for his remand hearing at the Tel Aviv Magistrate’s Court on February 18, 2018 (photo credit: REUTERS)
Shlomo Filber, the suspended director-general of the Communications Ministry, waits for his remand hearing at the Tel Aviv Magistrate’s Court on February 18, 2018
(photo credit: REUTERS)
The Tel Aviv Magistrate’s Court ruled that the police can review the cellphone of Ofer Golan but not the cellphone of Yonatan Orich and two other associates, all of whom allegedly intimidated a key witness in the bribery cases against Prime Minister Benjamin Netanyahu.
Golan and Orich are senior public relations advisers to Netanyahu, giving the ruling outsized political significance.
The ruling may not be the last word in a case that was already appealed to the Supreme Court, which partially reversed the lower courts and sent the case back to them for revisiting certain issues.
On December 25, the two advisers had obtained their first win when Supreme Court Justice Yosef Elron sent the case back to the Tel Aviv Magistrate’s Court, leaving open the possibility of denying the police access to evidence from their cellphones.
The case could have significant electoral consequences since Netanyahu has made the police’s and the legal establishment’s credibility a focus of his campaign and it is part of a spin-off case to Case 4000 against the prime minister.
Further, if the two officials get off with no charges, law enforcement will view that as a blow to their efforts to protect Case 4000 state’s witnesses from intimidation – the charge Golan, Orich and two others are accused of.
Elron ordered the lower court to decide whether the basis of the police’s current application to review evidence in the two senior officials’ cellphones was based on earlier police actions accessing those cellphones without a proper legal basis.
He said that if the police’s current application was based on the prior misconduct, their application would be denied, but if the court found that they had an independent basis for searching the cellphones beyond their past misconduct, the cellphone searching could go forward.
The latest ruling from the Tel Aviv Magistrate’s Court made it clear that the police’s conduct was troublesome in all of the cases, but that with regard to Golan, there was still a legal basis to justify permitting the police to search his cellphone.
Though disappointing for Golan, it is a major victory for Orich and the other two defendants, who had originally lost to the police at both the magistrate’s and district court levels.
On December 15, Elron had heard a fiery legal debate over whether Golan and Orich orchestrated an intimidation campaign against Shlomo Filber, a key state’s witness in Case 4000 against Netanyahu, or whether they are innocent and the police accessed their cellphones improperly without obtaining a court-issued warrant.
In addition, the case implicates the broader debate about police interrogation tactics and the ongoing verbal war between Netanyahu and the legal establishment.
In November, the Tel Aviv District Court endorsed allowing the police to hack the Netanyahu advisers’ cellphones to probe for evidence that they tried to intimidate Filber, hoping he would retract his finger-pointing at the prime minister.
Representing Netanyahu and his advisers, Amit Hadad told Elron on December 15 that the police must not get away with having abused Netanyahu’s advisers’ rights.
He said the court should penalize the police for slowly accessing four separate cellphones in the investigation over several days.
Hadad said that since there is a clear pattern of the police ignoring procedure and since the police had enough evidence to conclude their probe, they should not be allowed to more fully search the cellphones in question.
Previous lower courts approved the police request to review the cellphones more fully, despite the court having criticized the police’s conduct of initially reviewing the cellphones without advising Netanyahu’s advisers that they had the right to refuse the police request.
Effectively, both the district and magistrate’s courts had already previously said the police had violated standard procedures, but that substantively they still had a right to review the cellphone’s content due to the charges against Golan, Orich.
The state lawyer told Elron on December 15 that the cases would fall apart without a full search of the cellphones in question.
Moreover, the state lawyer told the Supreme Court that the legal issues involved were complex and that even if the police conduct was not ideal, it was far from a serious violation.
Allegedly, Netanyahu’s top public relations people sent staff members with a megaphone to drive past Filber’s house broadcasting intimidating messages designed to get him to recant his accusations that Netanyahu perpetrated bribery in Case 4000, the Bezeq-Walla Affair.