High Court to Mandelblit: Wait until A-G closes Harpaz Affair case to challenge decision

Court rejects cabinet secretary's petition to change A-G's decision regarding the likely grounds for dropping of charges.

Attorney-General Yehuda Weinstein (photo credit: MARC ISRAEL SELLEM/THE JERUSALEM POST)
Attorney-General Yehuda Weinstein
The High Court of Justice on Sunday rejected Cabinet Secretary Avichai Mandelblit’s petition to change Attorney- General Yehuda Weinstein’s decision regarding the likely grounds to drop the charges against him in the Harpaz Affair.
The decision said Mandelblit must wait until Weinstein has made his final decision to challenge it.
For over a month, it has been reported that Weinstein will close the case against Mandelblit, who is pushing to become the next attorney-general, on grounds of insufficient evidence for a conviction, and not on the grounds of having no basis for an accusation, as Mandelblit has required.
Assuming that Mandelblit is cleared, the grounds for dropping the charges could be very significant, as many would object to his appointment as the next attorney- general if he is only cleared because of insufficient evidence.
Insufficient evidence can imply that there might have been criminality involved and that ethic violations were likely, accusations that are not expected on the record of an attorney-general. Rather, it implies that the case was closed because of technical litigation issues that the prosecution thought would prevent it from meeting the very high “beyond a reasonable doubt” standard.
The court left Mandelblit some hope by saying he could challenge Weinstein’s decision once it was made, but limited that hope with statements overwhelmingly implying that the court did not believe it could intervene in the state’s decision about why it chose to close a case.
Last September, the police recommended that charges be brought against Mandelblit in his previous capacity as head of the IDF legal division, as well as against former IDF chief Gabi Ashkenazi; former IDF spokesman Avi Benayahu; Ashkenazi’s former chief of staff, Erez Viner; former IDF Golani Reconnaissance Unit commander Col. (res.) Gabi Siboni; and Lt.-Col. Boaz Harpaz.
All of the charges relate to the Harpaz Affair, an alleged 2010 plot by Harpaz to use the forged “Harpaz Document” to illegally undermine defense minister Ehud Barak’s choice to succeed Ashkenazi as IDF chief of staff as part of a more general battle between Barak and Ashkenazi, involving both sides allegedly spying and spreading misinformation about the other.
Significant time has passed since the police recommendation, and the majority opinion is that Mandelblit will get a pass, with the only debate being on what grounds.
Mandelblit had filed a petition with the High Court demanding a hearing with Weinstein in order to convince him that the grounds for his acquittal should be “no basis for an accusation.” Weinstein continues to refuse to meet with him, with his response being the state’s attempt to convince the High Court to back his refusal.
Mandelblit is accused of breach of trust and obstruction of justice in delaying to report to the police that Ashkenazi was holding a copy of the Harpaz document and in delaying to direct him to provide the document to the police, although he did eventually do so.
From the start, it appeared that Mandelblit might have some unique defenses, since the IDF Public Defender’s Office is representing him. Not only does this save Mandelblit the cost of his legal defense, but it also signals that at least the public defender believes that he was acting within the boundaries of his official role as head of the IDF legal division.
The head IDF public defender, Col. Asher Halparin, responded to the police recommendation at the time by stating that Mandelblit “provided in his interrogation full and detailed answers that clarified unambiguously that all of his actions” while serving as the head of the IDF legal division during the time period in question were “proper and correct.”
Mandelblit’s statement explained that only hours passed between when he learned of the document and when he received it from Ashkenazi, and only some more hours passed before he told Ashkenazi to turn over the document despite being somewhat immobilized in shock at its contents.
Mandelblit added that the police had ignored his role serving as Ashkenazi’s lawyer and protecting the chief of staff’s secrecy, as well as his directing Ashkenazi to turn over the document.
The cabinet secretary noted that even the State Comptroller’s Report on the issue had found his conduct as to the document proper, and that he expected Weinstein to clear his name.