1. Avichai Mandelblit

The attorney general who holds Israel's future in his hands

By
September 9, 2018 07:46
Attorney-General Avichai Mandelblit

Attorney-General Avichai Mandelblit . (photo credit: MARC ISRAEL SELLEM)

 
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While some attorneys-general might be limited to calling balls and strikes on technical issues, Avichai Mandelblit literally holds the future of the country in his hands.

He will decide whether to indict Prime Minister Benjamin Netanyahu in a series of public corruption cases that will determine the country’s direction, a decision that could bring down the prime minister and send the country to a new election. This power makes him this year’s choice to top this list. With made-for-TV irony, it appears that a man – accused by some of being too close to Netanyahu to be appointed attorney-general because he served as his cabinet secretary – could become the man who takes down the prime minister after a decade in power.

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In June, the Jerusalem Post reported that Mandelblit will likely announce an intention to indict Netanyahu for bribery by the end of 2018 or early 2019, at least in Case 4000 (the Bezeq-Walla! Affair) and Case 1000 (the Illegal Gifts Affair).

In the Bezeq-Walla! Affair, Netanyahu is suspected of using his power to impact policy to greatly enhance Bezeq profits in return for positive coverage from the Walla! media outlet. Both Bezeq and Walla! were owned by Shaul Elovitch.

In the Illegal Gifts Affair, the prime minister is suspected of accepting expensive cigars, champagne and other items as gifts from certain tycoons in exchange for his using his power to benefit their business interests.

The Post learned that Mandelblit, unlike his predecessor Yehuda Weinstein, does not believe it is crucial to publicize his decision about the prime minister before the next election. Rather, he will publicize his decision when he believes all evidence has been fully examined and all of the officials under him have sent him their recommendations.

Presuming the latest predictions that early elections will occur in January or February, it is likely that Mandelblit will hold off publicizing his decision until at least March – during the start of the next government’s term.

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There would then likely be an approximate six- to 12-month long pre-indictment hearings process before Mandelblit would announce a final decision to indict the prime minister – a decision that could end Netanyahu’s career and lead to a new round of elections.
Another possibility is that Netanyahu will find a way to resolve the latest coalition crisis over integrating haredim into the IDF and elections will be pushed off into the fall of 2019. In this case, Mandelblit would likely announce his intent to indict Netanyahu long before the next elections and a deal might be cut to resolve the charges without a trial on condition that the prime minister does not run for re-election.

Sources close to Mandelblit have made it clear that he is ready to indict Netanyahu, but would prefer to help Netanyahu find a way to leave office with dignity.

Netanyahu also still needs to worry about Case 2000, (the Yediot Ahronot-Yisrael Hayom Affair), but the Post has learned that Mandelblit views this case as the weakest of the cases against the prime minister. Meanwhile, Case 3000 (the Submarine Affair) is no longer regarded as having criminal implications for the prime minister, though it is likely to take down a number of his closest associates.

Mandelblit has already lost any chance at future invitations to the Netanyahu’s private residence in Caesarea. He already made his place in history by indicting the prime minister’s wife, Sara Netanyahu, in the Prepared Food Affair.

In that case, Sara is accused of misusing state funds to the tune of hundreds of thousands of shekels for unauthorized catering despite having a state-funded cook. She is also accused of fraudulently covering up the misuse of funds and ordering others to falsify documents. Her trial will open in the fall. The attorney-general’s decision to indict came in the face of tremendous pressure by the Netanyahus and their allies to drop the case.

If the fate of the prime minister were not in Mandelblit’s hands, it might be noted that he has heavily impacted nearly every major legislative effort that came through during his term. Despite Netanyahu having many personal reasons to be angry with Mandelblit from his and his wife’s criminal investigations, the prime minister has repeatedly deferred to the attorney-general on a range of major issues.

The Post has learned that while some have said Mandelblit has not showed enough backbone to Netanyahu and the Knesset as the gatekeeper of the rule of law or that these powers are ignoring him, he believes that he still wields tremendous influence.
Some may have forgotten the recent push to pass a law to allow the Knesset to veto Supreme Court rulings. The law appears to have died, at least partially at Mandelblit’s hands.

In principle, Mandlelblit believes that if the Knesset passes a Basic Law, the court cannot veto it because passing a law as a Basic Law makes it inherently constitutional. He also theoretically would not have been disturbed by a law that allowed the Knesset to veto Supreme Court decisions with 70 MKs or more (whereas the bill being pushed at the time required only 61 MKs.)
So if the Knesset had passed a “court circumvention law,” sources close to Mandelblit say he would not have been in the camp of those who said the Supreme Court could veto that kind of a law.

But his strong opposition to any law circumventing the court without gaining some consensus from the court itself either slowed the bill down long enough for the judicial branch and the Kulanu party to counterattack and sink it or it completely stopped the law in its tracks.

Likewise, while there are a number of ongoing fights and debates related to the Basic Law: The Jewish Nation-State Law, few are discussing the massive impact that Mandelblit had.

Most parties, including Netanyahu, agree that certain fixes need to be made to the law relating to loopholes and questions about protecting minority rights in certain scenarios. The debate now is about the extent of the loopholes that need filling. But Mandelblit torpedoed the original version, which would have far more overtly favored the Jewish majority – leading to a wrathful response from various members of Bayit Yehudi. Had the original version passed, the debate would not have been about loopholes potentially damaging minority rights, but gaping explicit chasms.

Mandelblit pushed to apply the nuanced principle of constitutionality protecting individual rights of all ethnic groups, while allowing Jewish principles to have a more dominant impact on a national level. This formula is still controversial and most still think the law requires fixes, but it will likely pass muster before the Supreme Court. The global criticism that hit Israel regarding the law would have been much worse if Mandelblit had not helped shepherd through changes reducing the encroachment on minority rights.

There are a long list of other bills and laws which Mandelblit helped nix or convinced Netanyahu to modify to bring them more in line with democratic principles. Even with the criminal investigations plaguing him and his family, the prime minister still views Mandelblit, his former cabinet secretary and former head of the entire IDF legal apparatus, as a top expert who should not be lightly ignored.
The greatest exception is the Settlement Regulations Law, which Mandelblit is opposing before the Supreme Court, forcing the government to retain a private lawyer to defend the law. The attorney-general took his best shot to block the law and failed.

But Mandelblit does not believe he failed at his job. Rather, he believes he advises against, and does not veto, problematic government laws. He views the Supreme Court as the body empowered to veto problematic laws and most predictions are that the court will agree with Mandelblit and block the law.

When questioned about whether his reasons for opposing the law were too limited and may invite the Knesset to try to pass a more modest Settlements Regulations Law even if the first is struck, Mandelblit demurs. Sources close to him say that he has made it clear that the primary issue with the law is the inherent contradiction in considering settler use of private Palestinian land as being in “good faith.” This problem would not be cured simply by reducing the scope of the law to include fewer residential units.

This does not mean Mandelblit does not try to support the settler enterprise where he sees openings. He used a side comment by former Justice Salim Joubran in a fall 2017 decision to try to create a narrower basis for endorsing Israelis building on private Palestinian land, even if it was not for security purposes, as long as the building passed a proportionality test. Until then, the courts had been clear that Israelis could not build on private Palestinian land unless there was a security interest.

Probably the best indication that Mandelblit feels he is still highly effective in impacting policy is that sources close to him have completely dismissed any notion of needing to use a threat to resign to get the government to heed his advice. Former Mossad chief Tamir Pardo raised the idea in recent interviews that, given certain orders, he might have considered resigning from heading the spy agency, but Mandelblit appears to feel he has a large enough impact on policy to not even entertain such a scenario.

Two and a half years into his term, one can see that the wear and tear of political battles has taken a physical toll on Mandelblit whose one-time red hair has turned gray, but he also appears far more confident and ready for even the greater challenges that loom ahead.

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