A-G green lights Benjamin Netanyahu to form gov’t despite indictment

An expanded 11-panel bench of the High Court of Justice led by Chief Justice Esther Hayut will make final decision next week

PRIME MINISTER BENJAMIN NETANYAHU consults with Avichai Mandelblit. (photo credit: REUTERS)
PRIME MINISTER BENJAMIN NETANYAHU consults with Avichai Mandelblit.
(photo credit: REUTERS)
Attorney-General Avichai Mandelblit on Thursday green lighted Prime Minister Benjamin Netanyahu to form the next government despite significant misgivings regarding the bribery indictment pending against him.
Mandelblit also said that despite major legal problems with other controversial aspects of the Likud-Blue and White coalition deal, the High Court of Justice should let the new government form and probe specifics only later and if concrete problems present themselves.
A maximum expanded 11 panel bench of the High Court led by Chief Justice Esther Hayut will make the final decision next week following live televised hearings on Sunday and Monday on that issue and on controversial changes to the Basic Laws which are part of the Likud-Blue and White coalition deal.  
The bottom-line is that Mandelblit has plowed the way forward for Likud-Blue and White to form the next government with Netanyahu as prime minister and Gantz as vice-prime minister.
Effectively, he is stamping out opposition from Yesh Atid and other opposition factions, even as numerous comments in his legal brief made it clear that he was holding his nose about large aspects of the coalition deal.
Mandelblit's opinion to the High Court comes after Blue and White itself called on the High Court earlier this week to let Netanyahu remain as prime minister due to the coronavirus crisis and to avoid unprecedented fourth elections.
Likewise, President Reuven Rivlin requested that the High Court reject the petitions against Netanyahu and the coalition deal and not try to drag his office into the issue since Netanyahu has the support of the majority of the Knesset.
Netanyahu told Likud ministers and MKs that the High Court intervening and preventing him from forming a government was "delusional, unimaginable and would lead to additional elections." Likud MK Gideon Sa'ar accused the Court of being "drunk with power."
Likud faction chairman Miki Zohar went further, saying that "if the High Court decides to overrule the 78 MKs, representing some 3 million people, who want Netanyahu to lead a unity government, it would result in a race that the Likud will win by a landslide and give the party a majority to pass the Supreme Court override bill."
Yesh Atid-Telem leader Yair Lapid responded that "the bullying and the dark, criminal threats of the ruling party against the High Court are intolerable."
"Every day, a new red line is crossed, worse than the day before," he said.
Both Mandelblit and the High Court have already rejected several petitions seeking to fire Netanyahu on a variety of grounds dating back to the indictment being issued on November 21, 2019.
Some of the several petitioning good government groups have been slightly more hopeful of winning over the court this time because this is the last crunch moment where the High Court can weigh in.
But Mandelblit's siding with Netanyahu, even as he was the who issued the indictment, is a heavy blow to their efforts.
Essentially, the attorney-general said that even though the law only addresses a sitting prime minister and not a transitional prime minister seeking to form a new government, the same provisions which apply to a sitting prime minister should be the lens with which an aspiring prime minister with an absolute majority of Knesset recommendations should be viewed.
Despite over 25 years of High Court precedent forcing ministers to resign upon indictment, Mandelblit said that the prime minister is qualitatively different than other ministers because toppling or blocking a candidate for prime minister throws off the entire process of government formation.  
Along the same lines, Mandelblit said it was critical to respect the will of voters in the last election and the Knesset members they elected who form an absolute majority requesting Netanyahu.
He said this is certainly true in lieu of an explicit Knesset law blocking Netanyahu from being prime minister – and there is no such explicit law.
The attorney-general recognized there is a problem with letting Netanyahu be in the position of appointing key rule of law figures at a time when he is in the crosshairs of the judicial branch and has publicly attacked top law enforcement officials.
Mandelblit even said it was possible that the court might be able to disqualify a future prime minister based only on an indictment, but advocated not doing so in the current unique circumstances.
Crucially, to the extent that Mandelblit struggled with the negative rule of law impact of letting an indicted defendant serve as prime minister, he seemed to be swayed to stepping out of the way due to the dual crises of the coronavirus and unprecedented 18 months of political stagnation through three elections.  
Regarding changes to the Basic Laws, Mandelblit said that after the government is established, portions of the deal may need to be amended which conflict with Israel’s democratic structure.
The attorney-general voiced concern that the deal restricts the Knesset’s powers for six months to consider issues beyond the corona crisis.
He also showed distaste for provisions which weakened the role of the opposition in the Knesset, such as removing them from certain committee positions as well as from the Judicial Selection Committee.
Mandelblit also objected to dividing the government into two blocs and to a deal to appoint Osnat Mark to the Judicial Selection Committee even though she will only become a member of the Knesset after various Likud ministers resign their positions.
But Mandelblit was ready to let these issues be dealt with at a later date so as not to undermine the deal as a whole and risk sending the country to Fourth Elections.
Until now, the High Court had rejected most petitions against Netanyahu as premature based on the idea that it was unknown whether Netanyahu would be tasked to form the next government.
With the deal between Netanyahu and Gantz, that issue moved from theoretical to imminent.
However, during one of the petitions, Mandelblit and the High Court did delve into aspects of the merits and gave strong hints that they would voice disapproval of Netanyahu for failing to step down voluntarily, while throwing up their hands that current Knesset law does not require forcing him out prior to conviction and exhausting all appeals.
Still, had Mandelblit or the High Court wanted to take Netanyahu out of the political arena, their strongest chance at doing that would have been prior to the March 2 election when the Likud could have picked a new candidate.
Based on prior comments of Mandelblit’s office and the justices about their sensitivity to the public will during elections, it has been much less likely that either of them will seek to disqualify Netanyahu now that he also has Gantz’s support to avoid a fourth election.
This is essentially the position Mandelblit has taken.
Even if Netanyahu is convicted in his trial due to start on May 24, the process could easily run between one to three years, depending on how quickly the Jerusalem District Court presses the case.