Few decisions that State Attorney Shai Nitzan has made have created as much controversy as his recommendation to then-attorney- general Yehuda Weinstein to criminally investigate the authors of the book Torat Hamelech (“The King’s Torah”) and his later recommendation to close the file without an indictment.
The authors, Rabbis Yitzhak Shapira and Yosef Elitzur, published the book in 2009. They argued that, according to Jewish law, it is permissible in certain circumstances to kill gentiles and in some cases even to kill the babies of enemy forces.
Weinstein, at Nitzan’s recommendation in a prior role, had closed the case in 2012, stating that Torat Hamelech was written in a general manner and does not call for violence explicitly or concretely enough to constitute incitement.
In December 2015, the High Court of Justice, in a split 2-1 decision, backed Nitzan’s – now as state attorney – and Weinstein’s move.
Supporters of the decision on the Right said it ended an unjust investigation into protected free speech, while other supporters said that even as they detested the views expressed in the book, the decision was correct in protecting free speech even of detested views.
Critics of the decision said that it took free speech too far, especially in an era when multiple indictments have been filed regarding Jewish terrorism against Palestinians.
In the rancor over the decision, a fascinating statement by Supreme Court President Miriam Naor, who voted in the majority to back Nitzan’s call giving the book’s authors a pass on being indicted, got little notice.
She wrote that if the petition before her had been against “an administrative decision regarding the admissibility of administrative evidence” against the book, she would have switched her vote and concluded that the authors did indeed write that “individuals are permitted to harm Arabs.”
In other words, she was with those who thought the book exemplified incitement, but simply did not think that could be proven to the high criminal standard used in criminal cases.
The Jerusalem Post has put forth the question of whether this could be an opening for Nitzan to press for some new “administrative” tools to regulate certain aspects of free speech which rest on the border of hate speech or incitement, but which can be restrained only if the high criminal standard and the punishments entailed are dropped.
Sources close to Nitzan say this would be a hard and interesting question for him, and it is not clear whether his office has fully considered the issue.
Nitzan views a 1989 High Court decision by then-Supreme Court president Aharon Barak rejecting a preliminary injunction to block the publication of a critical book about a public figure before it was distributed as highly relevant to considering the issue.
But in that opinion, Barak eventually alludes to the possibility of ruling differently if state security were at issue.
In considering the issue, Nitzan likes to reference the administrative order to seize the Yitzhar settlement’s yeshiva and the new mountain of indictments he is approving for incitement relating to social media at a pace of one every few days.
But he would admit that the issue of using administrative tools to combat racist or more borderline incitement materials has not been fully explored.
He would also not reject out of hand investigating the issue more thoroughly, and he is carefully watching developments coming out of a committee sponsored by Justice Minister Ayelet Shaked on fighting incitement.
WHILE TORAH HAMELECH was a tough call legally, probably the most politically risky and gambling move Nitzan has made was his decision to cut a plea bargain with former prime minister Ehud Olmert’s top aide Shula Zaken – a decision that unleashed on the public the now infamous Olmert-Zaken tapes.
The controversy about cutting a deal with Zaken had many levels. First, she had openly perjured herself at trial and admitted to involvement in the Holyland real estate bribery scheme, which, absent a deal, was virtually certain to lead to a jail sentence of around seven years. The deal led to a mere 11-month sentence. Also, even as Olmert was more senior, she had been a top aide to a prime minister, and any leniency to her was morally problematic.
Further, Zaken had refused plea bargain offers from 2008 until 2014 – leaving the prosecution to fight its way through two costly Olmert-Zaken trials, one of which it lost in no small part because Zaken refused to testify. At the point where Zaken was finally willing to cut a deal, it was not even clear that there was time to use her evidence in either of the trials, both of which had effectively concluded. So she might get years of jail off, and the prosecution might get nothing out of it.
Finally, Nitzan had to explain why he would say yes to a deal with Zaken so shortly after saying no to her and even fighting an NGO’s High Court petition that demanded the state cut a deal with her – a turnaround that occurred in March 2014 within two days.
Nitzan believes that the Zaken plea bargain deal was incredibly unique. The first time, he did not want the deal with her, as he was not sure she was speaking the truth. Sources close to him say that he was not willing to pay any price for a deal, and sent her home.
Then she came in with the cassette tapes. Unlike just offering to testify against Olmert, she now had produced objective and confirming evidence. Nitzan’s view is that the results of reversing Olmert’s acquittal in the Talansky Affair from innocent to guilty in a retrial proved that his gutsy and risky decision was correct.
But it easily could have turned out differently. The Talansky Affair case was in the loss column at the time, and the Supreme Court could have said it was too late to revisit the case. The judge in the Holyland trial did not even accept the new evidence and could have acquitted Olmert, both of which might have stopped Nitzan from even filing the third obstruction of justice case against Olmert.
Instead, the tapes turned the tide so far that by the time Nitzan filed the obstruction of justice case, Olmert himself cut a deal without a fight.
At the moment of truth, with no precedent and facing the most daunting defendant in Israeli history, how did Nitzan make his fateful decision? He followed a technique that he always uses for tough issues.
He held many meetings with his top 10 advisers and listened to them debate all of the possible issues and points involved. Then he used a technique of pushing them to the wall, saying there was no more room for “on the one hand and on the other hand,” and he wanted all of them to give their bottom-line recommendation as if they were sitting in his chair, that of the country’s state attorney.
Once he did that, after all of the debates, the decision was clear for him.
THE FALL OF OLMERT connects to the fall of another public official even closer to home for the prosecution – the former head of the Tel Aviv District Attorney’s Office, Ruth David. She is currently on trial in a bribery and corruption scheme that enveloped several top law enforcement officials.
Despite Olmert’s fall and David’s fall and a readiness to admit that he cannot exclude the possibility of other corrupt Ruth Davids, Nitzan would still express strong confidence that she was a highly exceptional case and that the prosecution as a whole is clean and dedicated to the public good.
What about the colossal fights he has been having for months with the Justice Ministry’s oversight czar Hila Gerstl? Many of the most intense fights relate to the prosecution’s handling of forensic expert Dr. Maya Forman-Resnick in her testimony regarding the 2006 murder of eighth-grader Tair Rada.
Forman-Resnick was brought as a forensic expert for the state’s case, but ultimately contradicted its case on a variety of forensic issues, leading the state to bring in other experts and to attack Forman- Resnick’s conclusions.
After the Nazareth District Court accepted the state’s arguments and convicted Roman Zadorov of the murder, it also slammed Forman-Resnick as having given unprofessional opinions.
Nitzan and the prosecution have faced unending criticism for going after Zadorov and not pressing in other evidentiary directions. For example, Supreme Court Justice Yoram Danziger, who voted in the minority to acquit Zadorov on appeal, in April publicly calling for acquitting defendants like Zadorov if there is a minority vote to acquit.
Nitzan would dismiss Danziger’s objection out of hand as being the purview of the Knesset and a suggestion that could totally flip the established legal order.
But the verdict was not the end of the story. Following the case, Forman-Resnick applied for a promotion within the Health Ministry.
Nitzan filed a letter to the ministry, noting the district court’s comments about Forman-Resnick.
This has led to accusations that he retaliated against her for failing to toe the line with the prosecution’s case. Nitzan has defended his letter as merely passing on the conclusions of the district court to the ministry.
But Nitzan has no duty to send such letters. Wasn’t he worried about how the letter would be perceived? Nitzan would be the first to say that public officials should not stop at only doing what they are formally obligated to do. He would also admit that he did not think his actions would lead to such a public battle, with Gerstl slamming him and the prosecution for their actions toward Forman-Resnick and allegedly trying to tamper with their forensic experts’ conclusions.
An NGO even requested that Shaked suspend him following Gerstl’s harsh criticism.
But Nitzan continues to defend his actions, believing that Forman- Resnick and the ministry should have waited to move forward on the new job until the Supreme Court removed the cloud from her (which it eventually did), and that the ministry had not heard about the ruling, which was relevant.
Nitzan also fought Gerstl to block a report she wanted to publicize harshly criticizing Nitzan and the prosecution for allegedly tampering with forensic experts’ conclusions on a systematic level.
Sources close to him say that he filed a petition with the High Court of Justice to block the report because, even as he is pro-transparency, he knows this report will damage the prosecution’s ability to enforce the law.
His view would be that this fight goes to the heart of the debate he has had with Gerstl: that she exceeded her authority by herself tampering with professional prosecutorial discretion.
This, Nitzan believes, is a direct attack on the prosecution’s independence and could destroy its ability to enforce the law without political pressures.
In Nitzan’s view, the attorney- general is the only one who can decide whether the state’s conduct is legal, and if the oversight czar is jumping into that arena, disagreeing with the attorney- general, there is a major problem.
Nitzan likes to talk about Gerstl’s oversight unit being a train that left the station going in the wrong direction. In his telling, he could have been a supporter of her oversight if she had stayed within her authority and not also tried to go after individual prosecutors on a personal level.
On April 18, Gerstl suddenly and surprisingly resigned as oversight czar. This was a possible sign that Nitzan and the prosecutors may win on some of the issues under debate. But many political officials still back a strong oversight unit, so it is unclear whether Nitzan will like Gerstl’s successor.
Ultimately, the country’s state attorney’s past and future decisions are not about a popularity contest – certainly not with the general public. But for many of the above decisions, Nitzan, who came in viewed as a bit of an outsider since he was never a prosecutor, has certainly earned the loyalty and respect of the prosecution.This article is the second and final installment in exclusive insider coverage of State Attorney Shai Nitzan.