Will Netanyahu cross Mandelblit's redlines before the trial?

LEGAL AFFAIRS: How will the attorney-general decide whether Netanyahu can remain PM as trial starts?

ATTORNEY-GENERAL Avichai Mandelblit –  responsible for the law, and not all aspects of the ethics and fate of the nation. (photo credit: MARC ISRAEL SELLEM/THE JERUSALEM POST)
ATTORNEY-GENERAL Avichai Mandelblit – responsible for the law, and not all aspects of the ethics and fate of the nation.
With all of the unprecedented public attacks he has faced, one might expect Attorney-General Avichai Mandelblit to take any opportunity he could to oust Prime Minister Benjamin Netanyahu.
But that is not who the attorney-general is.
Rather, he comes from an unambiguous right-wing family background and obtained the attorney-general position after having served closely with Netanyahu as his cabinet secretary.
In fact, The Jerusalem Post has learned that Mandelblit will likely bend over backward to avoid being the one who ousts the prime minister.
Mandelblit may be currently fighting tooth and nail with Netanyahu to impose on him a conflict of interest arrangement limiting his appointments and legislative powers that could impact his public corruption trial.
But the Post has learned that Mandelblit’s view is that he is doing this to save both of them from a situation where Netanyahu would need to be forced out due to “incompetence.”
The “incompetence” legal principle is usually used to force out a leader who is still alive, but has suffered some kind of physical or mental breakdown that prevents him from carrying out his duties as head of state.
But some top legal scholars and NGOs have been arguing that since Netanyahu’s indictment this past January, he should have been removed from office.
This would be on the grounds that – among other arguments – his judgment is too compromised and he will be too distracted to properly perform his duties.
Mandelblit alluded to this perspective in late September.
At that point, he said that a failure by Netanyahu to agree to a conflicts arrangement would lead him to seek an order from the High Court of Justice compelling the prime minister’s cooperation.
It did seem at the time that Mandelblit would not try to take down Netanyahu for verbal attacks, no matter the intensity.
However, a lot has happened since late September.
In mid-October, a series of stories, including highly embarrassing recordings of Mandelblit in private conversations, were leaked by journalists in a way designed to undermine the legitimacy of prosecuting Netanyahu.
Following the leaks, Likud coalition chairman Miki Zohar went so far as to threaten Mandelblit with more recordings if he did not resign and drop the case against Netanyahu immediately.
Zohar has even been questioned by police essentially on allegations of extortion.
Still, one might have expected that the latest escalation against the attorney-general would finally have led him to conclude that what he views as systematic incitement against law enforcement has crossed the line, and that he must push for Netanyahu’s removal.
The Post has learned that this is not the case.
What this means is that if Netanyahu signs on to the conflicts arrangement, it will almost serve like a contract from the attorney-general that will very likely let the prime minister remain in office except in the scenario where, years from now, he is convicted and exhausts all appeals.
The converse is also true. The conflicts arrangement is the redline. If Netanyahu violates the conflicts arrangement and intervenes in law enforcement or judicial appointments or legislation that could impact his trial, the Post has learned that this would push Mandelblit to reopen the question of whether Netanyahu must step down.
HOW DID Mandelblit arrive at this delicate balance?
On one hand, his view is that he must respect the will of the electorate which chose Netanyahu. Netanyahu is the prime minister, and it is the sovereign legislative branch, the Knesset, which decides who leads the country, those close to Mandelblit hear him say.
On the other hand, the attorney-general thinks that the implications of the corruption allegations for any Netanyahu decisions impacting law enforcement and the judiciary cannot be ignored.
Mandelblit is also adamant that he will determine the parameters of the conflicts arrangement, and that Netanyahu is not doing him a favor by voluntarily agreeing to portions of the arrangement.
Netanyahu’s legal brief to the High Court on the issue said he would not agree to be removed from involvement in judicial appointments or legislation impacting law enforcement and the judiciary, and would refrain only from involvement in law enforcement appointments.
The impression is that Mandelblit is not concerned about Netanyahu’s resistance on this issue and is confident that the High Court will support him.
And there is the not-so-veiled threat that if Netanyahu violates the conflicts arrangement, this is the one thing that could cause Mandelblit to shift directions and seriously entertain requiring the prime minister to step down.
But overall, Mandelblit clearly hopes that Netanyahu will abide by the conflicts arrangement so that no one needs to cross that bridge.
Even after the escalated attacks on him in mid-October, Mandelblit would view pushing out Netanyahu based merely on verbal attacks – no matter how bad – as an option that would do far more harm than good.
This is also the way Mandelblit saw his decision to green-light Netanyahu to form a government despite a pending indictment. There were two ways to interpret the issue. But this did not take away from the fact that the better reading of the existing law – and the interpretation that the High Court supported in an 11-0 vote – was that an individual like Netanyahu could not be prevented from forming a government until he is convicted.
Any implication that Mandelblit could have saved the country from constant fighting between Netanyahu and law enforcement by trying to oust Netanyahu after Blue and White leader Benny Gantz won the most seats in the second of three elections would be quickly dismissed.
The attorney-general’s view is that he is responsible for the law, and not all aspects of the ethics and fate of the nation.
ONE OF the most complex relationships that Mandelblit has had to manage has been Amir Ohana, first when he served as acting justice minister for several months, and since May when he has served as public security minister.
At the Justice Ministry, Ohana tried to appoint officials who would undermine Mandelblit, and there was chaos in the prosecution under the headline of trying to get the prosecution to be more ready to accept constructive criticism.
Since he became public security minister, Ohana infamously was recorded telling top police commanders to be more aggressive about cracking down on protests against Netanyahu. He also tried to silence them when they disagreed with him.
Ohana has loudly held over various top commanders that only those who please him would likely have a shot at becoming the next Israel Police commissioner.
He has also jumped on any controversial news relating to Mandelblit to hop on the bandwagon and pound the attorney-general verbally, including trying to second-guess his legal advice in the cabinet.
Despite this, Mandelblit’s view is that Ohana is a minister in the government whom he must respect, even if that respect is not reciprocal.
In terms of concerns from good government NGOs about whether Ohana’s approach is politicizing the police, Mandelblit would say that the police continue to function properly and independently.
Moreover, he would add that ministers are barred from getting involved in the professional expert level work performed in the Justice Ministry or in the agencies, like the police, overseen by the Public Security Ministry. As such, Ohana cannot order the police when to investigate a case and when not to.
If pressed that Ohana can still interfere indirectly by using the fact that he will appoint the next Israel Police commissioner as a pressure point to get senior police officials to follow his preferences, Mandelblit’s view is that this has not happened.
Rather, there are large numbers of officers in the system which has a professional, apolitical dynamic of its own. He would note that they do not show Ohana investigatory material from cases or allow him any improper influence.
OUTSIDE OF the Netanyahu controversies, there are other explosive issues that Mandelblit must still decide which could shake the country to its foundations.
In November 2018, after a nearly three-year probe, the police recommended indicting Interior Minister Arye Deri.
Then, in August 2019, the police recommended indicting Ya’acov Litzman for fraud, witness tampering and breach of public trust for allegedly interfering in the extradition of alleged pedophile Malka Leifer in one case, and bribery in a second case.
Just one week later, in August 2019, former state attorney Shai Nitzan recommended indicting Deri for tax crimes, fraud, money-laundering and some unspecified obstruction crimes.
These cases, especially the Deri case, which is ancient and needs only Mandelblit’s sign-off (the Litzman case still needs a recommendation by the prosecution), have been sitting in delays for what would normally be an unconscionable period of time.
But times have not been normal. In August 2019, the country was in the midst of multiple rounds of elections, which only this past May led to the formation of a government.
By May, the entire world was engulfed in the coronavirus crisis, which has drained the Justice Ministry’s ability to focus on other issues.
And yet with all of those qualifications, Mandelblit would recognize that Deri’s case probably should have been decided sooner, and would hint that it could be decided very soon, potentially in the coming weeks or month.
He is also cognizant that another round of elections may be around the corner and that it would be controversial to issue the Deri decision in the midst of an election season.
One source of delay which may be less known by the public is that the case itself has evolved substantially since the 2018 police recommendation.
Most of the more serious bribery charges did not pan out under scrutiny, and it has morphed into a less serious, though still criminal, tax fraud case.
Aspects of the tax fraud case were discovered only in the middle of 2019, and this required bringing into the case new experts to delve into it.
Still, even as Mandelblit would like to issue a decision soon – also out of sympathy for Deri himself, to know where he stands – he is a product of the legal establishment.
That means he repeatedly likes to emphasize proper process, internal debates, and that quality and a comprehensive review of the issues cannot be ignored in order to rush out a decision.
The impression is that the attorney-general and the prosecution are much farther away from reaching a decision regarding the Litzman case.
THOUGH THESE days the most intense criticism of Mandelblit comes from the Right, he still has critics on the Left.
Various NGOs and activists have slammed him for closing the Stock Affair against Netanyahu.
Also, they have criticized his refusal to consider Netanyahu as a suspect in Case 3000, the Submarine Affair, where many of his top aides will be brought to trial for bribery.
Sources close to Mandelblit say that no matter how crooked some of Netanyahu’s conduct might have looked to untrained, nonlegal eyes, there simply was no basis to even start trying to make a criminal case.
Mandelblit knows former top Defense Ministry officials Dan Harel, Amos Gilead and Moshe Ya’alon (Yesh Atid-Telem) well and respects them as security experts. But he would say that they simply do not understand the high standard of proof needed to go after someone for criminal charges.
Surprisingly, he would say the same thing about former Israel Police commissioner Roni Alsheich.
Alsheich implied to Yediot Aharonot that Netanyahu could be charged in Case 3000, but Mandelblit would imply that leading the police administratively does not make one a lawyer or a police investigation expert.
True, he would admit that the High Court has not yet rejected a petition demanding a criminal probe of Netanyahu. But he thinks there is no reason to speculate that this means the justices will take the unusual move of overruling Mandelblit’s prosecutorial discretion.
Incidentally, the Movement for the Quality of Government in Israel, an NGO, may file an updated legal brief as early as Monday.
Most importantly, the Post has learned that Mandelblit would be highly dismissive of claims that further criminal interrogations of either Netanyahu or his cousin Natan Milikovsky would actually unearth new evidence.
He believes that Netanyahu was questioned in detail, even if not under caution, and that really any case against the prime minister died when Netanyahu’s other cousin David Shimron (who will likely be indicted) refused to turn on him.
In Case 2000, there were serious disputes within the legal establishment.
Mandelblit would recount that the entire prosecutorial apparatus, including lead Netanyahu prosecutor Liat Ben-Ari, agreed that there was no case against the prime minister in Case 3000.
ONE AREA where Mandelblit and the prosecution have been on the defensive, even from High Court President Esther Hayut, has been the failure to stem leaks to the media of evidence in the Netanyahu case.
In fact, in September, it seemed that the High Court might compel Mandelblit to criminally probe the leaks.
Mandelblit won a victory this week with the High Court backing off on the issue. Still, his view would be that if law enforcement catches someone leaking in an unauthorized fashion, the full force of the law must be used against them, whether it is criminal or disciplinary charges.
At the same time, he would sound warnings about a probe into media links harming the public’s right to know and freedom of the press.
If he was pressed that a limited probe of police officials involved in the investigation could have been carried out without questioning journalists, he would shoot it down as dangerous, since it could unjustifiably place a cloud over them.
Those close to him say that a criminal probe and warrants to check people’s cellphones and communications cannot be opened without some specific proof and concrete suspicions.
This might be different if there was a security issue at stake. If aircraft were on their way to attack targets in Syria and a leak forced them to pull back, that might lead to a more aggressive approach even based on more generic suspicions, Mandelblit would likely say.
But the Netanyahu case, as important as it is, is only a white-collar criminal matter at the end of the day, and falls short of being a national security leak case.
Incidentally, Mandelblit would not rule out probing leaks to the media in a case where it was clear that only a few officials had access (the prosecution has said there were 150 officials in the Netanyahu case).
There is also an implied warning that this could go both ways. It is known that the list of officials who could have leaked negative stories about Mandelblit to Channel 12’s Amit Segal is very short.
All in all, those who see Mandelblit up close these days would need to admit that he looks even more weighed down than in the past, but would also be struck that his fighting spirit to defend the law appears undiminished.