A-G selection panel explains giving cabinet secretary a pass on Harpaz Affair

NGO Citizens for Good Governance and Social and Legal Justice petitions to block Avichai Mandelblit’s appointment as attorney-general.

Avichai Mandelblit and Netanyahu (photo credit: MARC ISRAEL SELLEM/THE JERUSALEM POST)
Avichai Mandelblit and Netanyahu
The selection committee that on Sunday nominated cabinet secretary Avichai Mandelblit to be the next attorney-general carefully reviewed the controversial Harpaz Affair before its decision.
In its letter to Justice Minister Ayelet Shaked, disclosed on Wednesday, it said that enough prominent lawyers had supported Mandelblit’s conduct in the affair that it did not need to rule on what he should have done, and that this is not an automatic disqualifier.
If nothing blocks his nomination, Mandelblit, who is known to be Prime Minister Benjamin Netanyahu’s top choice, would replace Yehuda Weinstein on February 1.
The Harpaz Affair involved a forged document which was written to try to undermine then-defense minister Ehud Barak’s choice for the next IDF chief-of-staff. It was part of a fight between Barak and then- IDF chief-of-staff Lt. Gen.
(res.) Gabi Ashkenazi over a number of defense establishment issues.
Reviewing the Harpaz Affair as it related to Mandelblit’s appointment, the committee said the key issue was how to interpret Mandelblit’s delay, then in his capacity as the IDF’s top lawyer, in informing Weinstein that he had been given a copy of the forged Harpaz document until the morning after he had received it.
Weinstein himself in May had effectively recommended Netanyahu to fire Mandelblit over his conduct, but was ignored.
The committee revealed that the NGO Citizens for Good Governance and Social and Legal Justice (OMETZ) as well as Col. Moshe Fisher (res.) had requested that the committee drop Mandelblit as a candidate over his conduct in the Harpaz Affair.
It added that the highly respected former chief state prosecutor, Moshe Lador, had fully supported Mandelblit’s conduct and vehemently rejected any argument that it would disqualify him from consideration for attorney- general.
Lador’s position continued the frequent disputes that he had with Weinstein from his time as the top state prosecutor, such as when he had pushed for filing a major indictment against Yisrael Beytenu Party leader Avigdor Liberman, but Weinstein filed only a minor indictment.
Mandelblit himself also contradicted Weinstein, claiming it was his duty and right to spend one night considering the complex dilemmas presented by the Harpaz document and referring to many other jurists who supported his conduct.
The committee wrote that, “Deciding these issues would require a deep review of the material evidence, including hearing witnesses. It is clear that…this would be a judicial proceeding, which would exceed the mandate of the committee…The committee is not a court…therefore, the selection committee decided not to address or decide, in this direction or that direction, the issues raised around this affair.”
Mandelblit is best known from his time as the IDF’s top lawyer for his special expertise in international law, having led the IDF’s opposition to the UNHRC’s Goldstone Report on the war.
The committee also addressed whether Mandelblit could be disqualified due to his current role as cabinet secretary, which many say has made him too close to Netanyahu and could impact his objectivity where the law requires him to disagree with him.
Professors Uriel Riechman, Amnon Rubinstein, OMETZ and attorney Shmuel Kleger said Mandelblit should be disqualified, since there had been no cooling-off period from his time as cabinet secretary.
Professors Ariel Bendor, Amichai Cohen, Aviad Hacohen, Avi Sagi and Adv. Gidon Sapir took the opposite position, saying the cabinet secretary is a non-political position and requires no cooling off period.
Ultimately, only the committee chairman, former Supreme Court president Asher D. Grunis, did not vote for Mandelblit following the debates on these issues.
Despite the committee’s support for Mandelblit, OMETZ on Wednesday filed a petition with the High Court of Justice requesting that it veto his nomination because of the Harpaz Affair and the lack of a cooling off period.
Earlier Wednesday, Shaked had approved Mandelblit’s nomination and said that she would pass his name on to the cabinet for final approval on January 3.
Though the committee ignored her earlier request to send her three names for final consideration by the cabinet, she recognized the committee’s interpretation that it only needs to send her three names if three candidates received support from four of the committee’s five members.
Since only Mandelblit received four votes, it did not need to send her the names of any other candidates. Mandelblit was selected from a list of 20 prominent candidates.