Is Israel's chief justice in hot water over Bibi probes?

If there were even a serious potential problem, Thursday’s session to select two new Supreme Court justices, in which Hayut is a major player, would likely be delayed.

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February 22, 2018 06:29
3 minute read.
Is Israel's chief justice in hot water over Bibi probes?

Esther Hayut. (photo credit: Wikimedia Commons)

 
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Supreme Court President Esther Hayut failed to report the “attorney- general job affair” to law enforcement back in 2015.

Has that failure to report put the head of the judicial branch in jeopardy just as the country tries to grapple with the possible toppling of the prime minister over a laundry list of probes?

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In short: The idea of Hayut’s job being in jeopardy is not impossible, but it is highly unlikely.

Why?

First, the background.

The attorney-general job affair broke on Tuesday, with the police alleging that Nir Hefetz, a top aide to Prime Minister Benjamin Netanyahu, offered ex-judge Hila Gerstl the job of attorney-general in 2015 through an intermediary – if she agreed to close the criminal probes against Sara Netanyahu. Gerstl reportedly rejected the offer, but did not report the incident to police.

Avichai Mandelblit took office as attorney-general in February 2016 and has announced he will likely indict Sara Netanyahu.



In an extraordinary move, by Tuesday night, Hayut had already testified to police that Gerstl came and told her about the incident and that she [Gerstl] had not reported it.

What level of obligation did either Gerstl or Hayut have to report the incident?

The Jerusalem Post spoke to two top legal experts on Wednesday about the issue. Neither thought that Hayut was in danger of facing criminal charges, or in danger of being forced to resign.

One of the experts, who has previously been on the short list for the Supreme Court, said that ideally, Gerstl should have reported the incident and Hayut should have tried to convince Gerstl to report the incident.

However, Hayut said that Gerstl did not tell her who made the offer to her, and told the story in such a vague way that she felt there was nothing of substance that she could report.

Based on that, the first expert said that it was not clear whether Hayut had an obligation to report.

There are questions about whether Hayut might have committed a low-grade ethical violation, as judges, let alone the head of the judiciary, are expected to behave in every area at a higher level of ethical behavior than virtually any other public servants.

Just because Defense Minister Avigdor Liberman in 2013 succeeded in just barely beating a rap for failure to report an Israeli ambassador’s conduct designed to help obstruct a probe of Liberman, does not mean that the Supreme Court president can get away with failure to report.

In the highly unlikely worst-case scenario where Hayut might have committed an ethical violation, the Supreme Court vice president would need to convene a special disciplinary court to judge whether the failure to report could affect her judicial standing.

But the first expert viewed that as unlikely and the second expert, former judge Haran Fainstein, viewed it as a practically nonexistent possibility. Fainstein, who now teaches at Bar-Ilan University, said that he knows Gerstl well and believes 100% that she did not view the offer as real.

If Gerstl did not view the offer as real, then neither she nor Hayut had anything to report.

Regarding Gerstl, Fainstein pointed out that she was a retired judge when the offer was made so that she did not have the increased duties of a judge as a general matter of conduct. If that is so, then the idea that Hayut needed to try to convince Gerstl to report might also fall by the wayside.

He said that the issue might have been different if the allegations Gerstl passed on to Hayut were much more concrete.

Obviously, the whole analysis would be different if Hayut knew more than she has let on, but no one has alleged that, and even her publicized testimony was coordinated with police.

Finally, there were no signs from the police, the attorney- general, the Justice Ministry or the Bar Association, that Hayut was in jeopardy.

If there were even a serious potential problem, Thursday’s session to select two new Supreme Court justices, in which Hayut is a major player, would likely be delayed.

The Post has confirmed that the meeting is on with no changes. So, it seems, is Hayut.

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