A-G to High Court: PM can’t appoint judges, mold court-related bills

Netanyahu has rejected the attorney-general’s view, saying that appointing judges will not impact his trial when the three judges who are hearing his case are already set.

Prime minister Benjamin Netanyahu in the Knesset in Jerusalem (photo credit: RONEN ZVULUN/REUTERS)
Prime minister Benjamin Netanyahu in the Knesset in Jerusalem
(photo credit: RONEN ZVULUN/REUTERS)
Attorney-General Avichai Mandelblit has filed a legal brief with the High Court of Justice explaining his view on why Prime Minister Benjamin Netanyahu cannot be involved in the appointment of judges or in passing legislation that could impact his public corruption trial.
Filed late Tuesday night, Mandelblit said that Netanyahu’s agreement merely to refrain from involvement in appointing law enforcement officials was insufficient due to his conflict of interest as an indicted defendant.
Netanyahu has rejected the attorney-general’s view, saying that appointing judges will not impact his trial when the three judges who are hearing his case are already set.
Further, he has said that appointing judges and managing legislative efforts are at the heart of the prime minister’s powers and cannot be limited by other branches of government.
Mandelblit responded in his brief that newly appointed judges could still rule on Netanyahu’s case in the future, either at the district court or High Court levels.
He noted that sometimes other district court judges get drawn into parts of a case (not to mention that sometimes judges are unexpectedly compelled to switch mid-case due to health reasons) and that any candidates for the High Court might rule on any appeal that Netanyahu might file should he be convicted.
In addition, Mandelblit said that appointing judges is not at the heart of a prime minister’s powers, as judges are chosen by the Judicial Selection Committee, of which the prime minister is not a member.
Regarding legislation, the attorney-general said that Netanyahu will not be blocked from molding general legislation in the legal arena or the criminal arena more specifically.
He will be blocked only from involvement in legislation that could have a concrete impact on his trial.
At the other end of the spectrum, Mandelblit rejected requests by NGOs to extend the conflict of interest limitations from Netanyahu to Public Security Minister Amir Ohana.
He said that all conflict of interest rules are inherently a personal-individual process and that there is no way to automatically extend them to others simply because of their similar political affiliation.
Mandelblit did not address concerns that Netanyahu will block the appointment of state attorney nominee Amit Aisman by quiet directives to his Likud and right-wing bloc, which currently has enough votes to block any appointment.
On November 12, the High Court moved closer toward setting the limits on Netanyahu’s appointments and legislative powers pending his February trial for public corruption.
While Netanyahu lawyers Michael Ravilo and Yossi Cohen asked the High Court to stay out of the issue or intervene only in a narrow way, High Court President Esther Hayut responded, “Now there is a new reality. On the table is the definitive legal opinion of the attorney-general. Some of it you agreed on, and some of it you didn’t. You want to go back to the stage of negotiations, but that is already over.”
At stake are several momentous issues that impact on the balance between the executive branch and the legal establishment going forward, and which Netanyahu and Mandelblit have been negotiating over for months.
First, there is the question of whether Mandelblit can impose a conflict of interest arrangement on Netanyahu (keeping him out of appointments or legislative issues that could impact his trial) or whether the attorney-general’s view is nonbinding legal advice, with only the High Court having the power to bind.
Second is whether Netanyahu will be forced to agree to limitations on his powers, which he has rejected, or will succeed, through court order or otherwise, in staring down Mandelblit.
For example, Netanyahu’s lawyers claim that they have reached an agreement on 80% of the conflict of interest issues with Mandelblit and that only 20% remained in dispute.
His lawyers asked the court to limit its decision to which position was more reasonable on that 20%, whereas the state’s lawyers asked the High Court to rule that Mandelblit’s view was binding – which would essentially end the dispute.
Connected to all of this is the most critical appointment being fought over between the sides, the question of who will fill the role of state attorney, which has been empty since Shai Nitzan stepped down in December 2019. But that is only one on a long list of issues.
After months of negotiations between Mandelblit and Netanyahu, on November 2 the attorney-general publicized his view of limits on Netanyahu’s powers.
The limits included barring Netanyahu’s involvement in appointing the next attorney-general in 2022, the next state attorney and police chief – processes which are under way – Jerusalem District Court or High Court judges and top officials in the police anti-fraud unit.
In addition, Netanyahu would be banned from involvement in the Communications Ministry and any government decisions impacting witnesses or other defendants in the trial.
Finally, the prime minister would be prohibited from involvement in legislation that could impact the trial, such as the French Law, which could grant him immunity, or the Circumvention Law, which could empower the Likud to override a conviction by the Supreme Court following a conviction by the district court.
Critically, Mandelblit has publicly said he would likely not support ousting Netanyahu if the prime minister agreed to the conflict of interest arrangement, despite the ongoing trial.