How President Trump Might Respond to President Herzog’s Dis – Regarding a Pardon for Netanyahu

by Rabbi Yair Hoffman

As many people have heard today, President Trump wrote a letter to President Herzog formally requestiong that he pardon Prime Minister Netanyahu, and that President Herzog responded:  Sorry we must follow established policy.  What follows is an argument that President Trump might offer:

Dear Mr. Herzog,

I present to your response to my request with two arguments: 1] The first is a legal argument that is undeniable – that “established practice” lies within your purview and that in light of the issues I put forth in writing – you should modify the “established policy” in this particular case. 2] The second is based upon the argument of your own grandfather – Rabbi Isaac Herzog – whom you were named for.  He argued that the legal system in Israel should be based upon Jewish law – not Roman law.  He wrote, I believe 6 volumes to that effect – Six entire volumes.  In particular, I refer to the power of Migo.  That based upon this remarkable legal principle of Judaism, Migo – you have the power to pardon him now.

The power of pardon vested in the President of Israel stands as one of the most profound expressions of executive authority in our constitutional framework. While “established policy” suggests that “the President considers requests for clemency only after the conclusion of all legal proceedings,” policy is not law, practice is not limitation, and custom cannot constrain constitutional power. The Israeli President possesses both the legal authority and the constitutional prerogative to grant clemency before legal proceedings conclude—indeed, even before an indictment is filed.

The Constitutional Foundation: Unbounded Executive Power

The Israeli court record shows the extraordinary scope of presidential clemency. As established in HCJ 9631/07 Katz v. President of the State, “the president was not answerable to the court in relation to the performance of his functions or powers, including his power to reduce sentences.” This is not merely administrative discretion—this is constitutional sovereignty. This also applies to the idea of established practice.

The Supreme Court further recognized that while “the court was empowered to examine the legality of the president’s decision, its examination of such legality was more limited and circumscribed than in the case of other governmental and administrative bodies.” In other words, the President’s pardon power occupies a unique constitutional space, largely insulated from judicial second-guessing.

Most tellingly, in HCJ 849/00 Schatz v. Minister of Justice, the Supreme Court explicitly ruled that “mere custom could not limit a constitutional power, like the president’s power to shorten sentences.” This is the death knell to any argument that “established practice” can bind the President’s hand. Custom yields to constitutional authority. Practice bows before power.  The power to pardon Bibi, lies with you Isaac.  

Precedent Affirms Pre-Conviction Pardons

The Israeli legal system has already recognized this authority. In the landmark case HCJ 428/86 Barzilai v. Government of Israel, concerning pardons granted in the “Bus 300” affair, “The Supreme Court ruled that the president has the authority to grant a pardon, even before an indictment.“

Please, let that sink in – your grandfather argued for it and even Barzilai v. Gov of Israel concluded that it applies : even before an indictment. Not merely before a conviction. Not just before sentencing. Before charges are even filed.  For the love of everything you hold dear – pardon him!

 The constitutional door stands open.

The Migo Argument: The Logic of Power

Here we introduce a principle from Jewish jurisprudence that illuminates the legal logic with crystalline clarity: the concept of migo (מיגו). In Jewish law, migo establishes that if a person has the acknowledged power to achieve a greater result, they certainly possess the lesser power to achieve a more modest one. If someone could have made a more advantageous claim that would have been believed, their lesser claim is strengthened—because they could have done more but chose to do less.

Apply this to a presidential clemency for Bibi:

The President possesses the undisputed constitutional power to grant a complete and unconditional pardon to a convicted criminal—erasing the conviction, nullifying all penalties, and restoring the person to their pre-conviction status. This is the greater power. As the document confirms, the President can even grant pardons to those serving multiple life sentences, can erase criminal records, can nullify driving disqualifications, fines, and every manner of judicial punishment.

Indeed, in HCJ 177/50 Reuven v. Chairman and Members of the Legal Council, the Supreme Court held that “Once the president has granted a pardon to someone convicted under disciplinary law, all disciplinary sanctions taken against that person are canceled (including disbarment).” The President can undo what courts have done. He can erase what the judicial system has written in stone.

If the President has the power to completely nullify a final conviction after years of imprisonment—the greater power—does he not certainly have the lesser power to forestall prosecution before it even begins?

If he can pardon after the legal process has run its full course, after evidence has been presented, after guilt has been proven beyond reasonable doubt, after appeals have been exhausted—can he not act earlier in the process when injustice or exceptional circumstances demand it?

The migo is irrefutable: the power to do the greater (pardon after conviction) necessarily includes the power to do the lesser (pardon before conviction).

Also, let’s trace the Israeli President’s pardon power to its source: “The origins of the power of clemency in Israeli law lie in the power of clemency of the English king. This royal power to grant pardons was itself rooted in the king’s power as the ‘font of justice’ to lay down the law, impose criminal responsibility, and hand down punishments.”

This is sovereign power, inherited from the royal prerogative, vested in the office of the President as the embodiment of the state’s mercy and grace. The king could pardon before, during, or after any legal proceeding—because the power of clemency existed outside and above the ordinary machinery of justice. So too does the Israeli President’s authority.

Policy Cannot Trump Constitutional Power

Yes, current policy states that requests “will be processed only after the conclusion of all legal proceedings.” But this is administrative convenience, not constitutional limitation. The President establishes his own policies for exercising his constitutional powers. He is not bound by the policies of his predecessors any more than he is bound by custom or practice.

Also the very document posted on your very own website states, “Israeli presidential history shows that the institution of clemency also reflects each president’s vision and values, which influence his decision on whether or not to grant a pardon.” Each President brings his own “vision and values” to the office. One President’s policy does not constrain his successor’s constitutional authority.

The Supreme Court made this point decisively in HCJ 849/00 Schatz: custom cannot limit constitutional power. If custom cannot bind, how much less can mere administrative policy?

The Israeli President’s power to pardon is not a derivative authority, granted by statute and limited by regulation. It is a constitutional power, rooted in sovereign prerogative, recognized by the Supreme Court as largely immune from judicial interference, explicitly acknowledged to extend even to pre-indictment pardons, and logically demonstrated—through the principle of migo—to encompass lesser exercises of mercy if it includes greater ones.

What remains then is not a question of legal authority, but of judgment, wisdom, and the President’s constitutional responsibility to exercise mercy when justice demands it. 

My dear Isaac:  The President of Israel has the right—indeed, the constitutional authority—to override established practice and grant clemency even before legal proceedings conclude. Not because custom permits it, but because constitutional power demands no such permission.

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