Rule of Law: Deciding the Prime Minister’s fate

What does Attorney-General Avichai Mandelblit really think about releasing the PM-Mozes tapes, Netanyahu continuing as communications minister and more?

By
January 21, 2017 20:50
PRIME MINISTER BENJAMIN NETANYAHU consults with Avichai Mandelblit.

PRIME MINISTER BENJAMIN NETANYAHU consults with Avichai Mandelblit.. (photo credit: REUTERS)

One man will decide the fates of Prime Minister Benjamin Netanyahu, the current government and, perhaps, the country – Attorney-General Avichai Mandelblit.

Will Netanyahu and the government implode in an avalanche of cataclysmic proportions from allegations that he broke the law in receiving hundreds of thousands of shekels in gifts of cigars and champagne from wealthy business people (Case 1000)?

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Or from allegations that he hatched a plan to handicap Israel Hayom in order to convert Yediot Aharonot from his greatest enemy to his biggest supporter (Case 2000)?

Mandelblit cuts a much larger physical figure in his office than his short predecessor, Yehuda Weinstein and is a man of contradictions. He is an extremely cerebral man who overwhelmingly comes off as a smooth-operating, calculating, rationale actor, who sees the chessboard of complex issues and disputes better than almost anyone.

Mandelblit, the former top lawyer in the army and former cabinet secretary to Netanyahu, exudes a warmth and carries with himself a free and bellowing laugh that one does not see from many coldly calculating politicians.

His multifacetedness and complexity offers insight into some of the highly nuanced views Mandelblit holds about major legal issues confronting him and the lack of a rush on his part to reach major decisions.

To indict, or not to indict Regarding those in the press pressuring Mandelblit that he must indict Netanyahu and do it now, the attorney-general is convinced that such people – who are calling for the prime minister’s head when it is obvious that they do not have all of the facts – have an agenda focused solely on Netanyahu, not on the truth.

In contrast, Mandelblit would note that he is fully supported by top officials, both in the state prosecution and the police.

Mandelblit acknowledges that the support is only at the top, and that among some of the rank and file in the prosecution and the police, there is dissent and criticism of the pace of the case and a stronger tendency toward indicting Netanyahu.

However, he would respond simply that leadership comes from the top, and that the rank and file do not make final decisions in any organization.

As for the pace of his decisions, the impression is that while brushing off accusations of favoritism, he is cognizant that if he indicts Netanyahu and there is an acquittal, as with Weinstein’s indictment of Liberman, such a failure would be on him.

His view is that the impact of an indictment on the government is very clear – it would fall. While some Likud members have imagined Netanyahu continuing in office even once indicted, Mandelblit harbors no such delusions - Netanyahu would have to resign.

And if that turns out to be the right legal call, and if Mandelblit believes they will get a conviction of Netanyahu in court, sources close to him say that he would accept that outcome.

But Mandelblit thinks that any lawyer making a decision that causes the government to fall must be fully at peace with the decision.

If he does not indict Netanyahu, and some of the police investigators then say he made a mistake, he would also not like that, but again, Mandelblit believes that he is the only one who must live with the consequences of his decision. In contrast, most of his critics come from a safe place, with no responsibility for the consequences of decisions they are pushing for.

Ultimately, the impression is that Mandelblit has the nerve to indict Netanyahu, but probably will not, based on the evidence currently before him.

Mandelblit would reject accusations and stories that he has improperly interfered with the police, or prevented the police from taking necessary investigative actions.

In his public comments on Monday he explained that he held off moving to a criminal investigation of Case 2000 regarding the Netanyahu-Mozes talks in order to give the police more time to investigate Case 1000.

What he did not say was that the latest investigation started with Case 1000 and that there were internal debates within the police and the prosecution which drew out the preliminary inquiry of Case 1000.

Mandelblit’s perspective would be that, across the board, the senior echelon believes that many of the strands of Case 1000, which have been heavily covered in the media as being ignored by him personally, simply have no chance on the legal merits.

For example, regarding one strand that has been written about as suspicious, Likud lobbyists may get overpaid, but that does not mean there is proof or a chance of proof that a crime was committed, especially when a statute of limitations also applies.

An investigation into connections between Netanyahu and lobbyist Odelia Carmon was sitting on Weinstein’s desk as early as 2014, and when he closed the file, the police did not object.

He likes to point out that many of his critics did not call him out for limiting aspects of the investigation into opposition leader Isaac Herzog, which he ultimately closed with no indictment.

Mandelblit continues with a similar defense of the slow pace of his handling of the Sara Netanyahu and Prime Minister’s Residence cases.

He would say there is too much focus on him, and would note that regarding the criminal cases, his prosecutors wanted additional investigative acts by the police.

In fact, he would say that if he had pressed for a quicker decision, he would have been criticized for limiting the police.

Many have alleged that the state lawyer in the civil labor court Sara Netanyahu case was more aggressive in attacking plaintiff Meni Naftali than was necessary for merely doing the state’s duty in defending a lawsuit against state property. Sources close to Mandelblit say that he did not deal with the case, and that the Jerusalem District Attorney’s Office decided how to handle it.

To release, or not to release Despite speculation from his public statements on Monday, sources close to Mandelblit say he will not put out one iota of the recordings or its transcripts before the investigation is complete.

On the other hand, whether he will put them out once the investigation is complete but before he makes his final decision may be in play.

If asked about excerpts from the recordings that have been published to date, Mandelblit would treat them with disdain, pointing out that they are very limited pieces of the full picture and that none of the media actually have the recordings themselves.

His view is that as important as the public’s right to know what occurred between Netanyahu and Mozes is, the principle of avoiding obstruction of justice and digging in to get to the truth of what happened is far more important.

Mandelblit is also unimpressed by the day after day insistence of the media that he has no choice but to immediately publish the transcripts and to indict Netanyahu.

One issue where Mandelblit’s views would seem to be shocking and have not been revealed until now is Netanyahu’s possession of the Communications Ministry.

This is a battle of huge consequences, because many are saying Netanyahu is trying to conquer the media to assure his continuation in the prime minister’s chair.

The opposition seems to believe that it has Netanyahu cornered on having to give up his prized personal control over the ministry, even if he avoids an indictment.

And the opposition may have a point, at least on this issue.

Even if Mandelblit lets Netanyahu off of any indictment, due to ambiguities in the facts and law regarding the current cases, it can be demanded of him: How can he possibly not view Netanyahu as having a conflict of interest as communications minister, when the prime minister so flagrantly interfered, for personal gain, in coverage with the country’s two largest print publications? Mandelblit would, shockingly, strongly reject that conventional wisdom out of hand. His perspective is that no one seems to know, or everyone is consciously ignoring, that it is the Interior Ministry, not the Communications Ministry, which has power over the issues that Netanyahu and Mozes were negotiating regarding a new Israel Hayom law and rolling back aspects of the newspaper.

If there is any reason to suspend Netanyahu from the Communications Ministry because he has violated a grave duty or criminal law, then Mandelblit will unhesitatingly suspend him. But it appears that Mandelblit does not believe any of the publicly available evidence has proven that Netanyahu did anything grave from a legal perspective.

There is another issue where The Jerusalem Post and many others have taken Mandelblit to task.

Let us assume that Netanyahu should be cleared of all charges and that Mandelblit is able to decide the case objectively, despite having worked closely with the prime minister.

Still, their close working relationship inherently meant from day one that the press and much of the public would doubt the objectivity of the investigation as long as Mandelblit was handling it.

In other words, even if Mandelblit is an angel, there was no way he could avoid the appearance of impropriety. Specifically for that reason, many said he should have been vetoed from becoming attorney-general, or at the very least should recuse himself from cases relating to the Netanyahu family – which everyone knew were already on the table.

On the legal question of whether Mandelblit could be attorney-general without a cooling off period, the selection committee voted 4-1 confirming him (with former Supreme Court president Asher Grunis notably voting “against” on the cooling-off issue), and a petition to the High Court of Justice to block his appointment was rejected, removing any formal legal bar.

But the question of appearances – crucial when it refers to the legitimacy of the prime minister of the country – and whether it would have been smart, even if not required, to recuse himself from the Netanyahus’ cases, is a much harder question to dodge.

Mandelblit surprises again and does not dodge. The impression is that he would fall back on a major decision of former Supreme Court president Aharon Barak that judges and top legal officials do not have discretion about whether to judge and make tough decisions, but have an obligation to do so.

Mandelblit firmly believes that he would actually be violating his duty as attorney- general if he recused himself because of some distant connection, which was solely professional, to Netanyahu, as opposed to any kind of close emotional connection that could have interfered with his duty.

He would explain that Barak ordered that judges must not recuse themselves just for convenience or due to vague connections, even if 200 other judges could have properly handled the case.

Mandelblit considers that if this is true for judges, then the obligation of the attorney- general to be the one to decide the fate of the prime minister is far more paramount, since the law specifically dictates he be the one who decides the fate of ministers, and there is not a single official of equivalent rank.

The attorney-general rejects any comparison to Weinstein, who recused himself from former prime minister Ehud Olmert’s case, as Weinstein had previously been Olmert’s lawyer.

Asked if he really would not be emotionally impacted at all by indicting Netanyahu and causing his government to fall, sources close to him say that he was also sad as a citizen when Olmert was indicted, but that his experience as the army’s top lawyer taught him how to completely separate those emotions from his professional responsibilities.

Settlement Bill, Amona outpost Other issues that have rocked Mandelblit’s tenure are the Settlement Arrangements Bill and the Amona outpost.

At the start of his term, Mandelblit was showered with praise by members of the coalition for being far more flexible in trying to find legal ways to implement some of their more controversial ideas. In contrast, the coalition, especially Knesset members on the Right, had accused Weinstein of being overly activist in blocking government and Knesset initiatives.

That honeymoon ended on November 23 when Mandelblit threw down the gauntlet and told those on the Right in no uncertain terms that he, too, would put up a stop sign – namely, the Settlement Arrangements Bill.

At that point, the Knesset ignored his stop sign and at least voted through the bill’s first reading.

Asked if the Knesset would have been less aggressive if he had taken a harder line from the start, Mandelblit would say that nothing can dissuade the Knesset, if it is prepared to ignore legal advice.

Sources close to Mandelblit say that the Settlement Arrangement Bill could be called “the Law for Legalizing the Infiltration of Criminals” onto others’ lands, and ask: How could it be that the State of Israel would do such a thing and tolerate such lawbreaking? This is not to mention the international law implications of the Settlement Arrangement Bill, which sources close to him say amounts to complete suicide.

Despite his fierce opposition to the bill, Mandelblit stands firmly behind his efforts to move and salvage Amona, efforts that were criticized internationally.

Regarding the International Criminal Court prosecutor’s preliminary examination of Israel for alleged war crimes relating to the 2014 Gaza war and the settlements enterprise, Mandelblit is loath to comment, but it appears that he is worried and does not think Israel’s chances are great, but also believes that the fight is not lost.

Most surprisingly, the impression is that Mandelblit believes not only that Israel may dodge the ICC bullet on the grounds that its legal system prosecutes its own sufficiently, but it still may get off by convincing the ICC to undo its recognition of “Palestine” as a state.

If that recognition would be withdrawn, the entire examination would need to go away, since generally only states can ask the ICC to get involved.

Thus, Mandelblit straddles a fence between opposing views and complexities.

He may be on his way into Israel’s legendary class of lawyers and, eventually, to the Supreme Court.

But whether he will find a safe landing for himself on Netanyahu’s fate and the country’s fate before the ICC, or topple off the tightrope into the abyss awaiting him below, should he stray off course for even an instant, remains to be seen.


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