The coming legal revolution – Will the A-G's position be split in two?

“How could someone in the morning sit with the prime minister about his policies, while at night he must decide to file an indictment against him?"

A war is brewing over the future of the attorney-general’s powers that many have missed as most focus on battles between Prime Minister Benjamin Netanyahu and the state prosecution.
It is a war between New Hope Party leader Gideon Sa’ar and others challenging Attorney-General Avichai Mandelblit and the future of his office for ideological reasons, even as some of them are in the anti-Netanyahu or swing party camp (like the Yamina Party.)
In some ways, the war is undeclared.
Sa’ar has vacillated between third and fourth in the polls, so he has an uphill battle to have his vision become policy.
But in a recent interview with The Jerusalem Post, Sa’ar made it clear that he wanted to split the Attorney-General position into two separate positions fulfilling its two separate hats: a chief legal adviser and a chief prosecutor.
In recent weeks, the Israel Bar Association, Bar Ilan University and others have held a variety of conferences with scholarly officials representing both sides of the debate about the future role of the attorney-general.
What is different about Sa’ar’s approach to this issue, versus Netanyahu’s, is that he is not under indictment and of course wants Netanyahu out of office. In fact, Sa’ar once worked in the Attorney-General’s Office.
He believes in the necessity of a shift based on clean ideology as opposed to having any self-interest in weakening Mandelblit for issuing an indictment.
Of course, Sa’ar is not the first to raise this issue on ideological grounds.
Former justice ministers Daniel Friedman, Yaakov Neeman and Ayelet Shaked all pressed the issue, ironically stopped partially by the pre-indictment version of Netanyahu. Once again, Shaked and Yamina’s continued ideological support for changes on this issue could be significant later in 2021.
Addressing Shaked’s campaign on the issue to the Knesset Constitution, Law and Justice Committee in 2016, Mandelblit said he was vehemently against splitting the attorney-general powers into separate offices.
He explained that although he thought there was nothing illegal about splitting the attorney-general’s powers, that there was no need for it.
Further, he argued it could have unintended consequences and it will be perceived by many as an attempt at weakening law enforcement.
In addition, he said this perception by itself would be highly destructive.
Mandelblit has generally maintained this position, adding that no reform can be carried out on the issue as long as Netanyahu is prime minister and under indictment to avoid a conflict of interest.
But interestingly in multiple appearances at the recent legal conferences, Mandelblit said that after this era, and as a general matter the question of splitting the roles was one “worthy for debate.”
The flip side from ideological critics like Sa’ar goes as follows.
He asked the Post: “How could someone in the morning sit with the prime minister about his policies, while at night he must decide to file an indictment against him? Who will trust this man, who cannot be an angel” even if he has good intentions?
By the same token, Sa’ar objected to having the same individual file indictments against a defendant and decide about whether the funding of that individual’s trial defense was legal – as Mandelblit did.
This was not a criticism of Mandelblit as much as it was criticizing inherent tensions in the current structure of the office.
Sa’ar agreed that, “it’s true that the legal establishment is mostly against this, but it is unduly orthodox about making changes even when it is in its interest. We need a serious public debate: to fix and not to destroy.”
There is no certainty in politics.
But there are multiple paths now to fundamental changes to the office of the attorney-general.
If Netanyahu forms the next government, he will most likely have heavy support from his likely coalition partners to change the Attorney-General’s Office starting with February 2022, when Mandelblit’s six-year term ends.
If a coalition led by Yesh Atid’s Yair Lapid, Sa’ar and Yamina’s Naftali Bennett is formed, there is also a strong chance that the Attorney-General’s Office will be changed.
Granted, the Labor and Meretz parties which would likely be in this coalition would probably vote against such changes.
But their primary current goal is to knock Netanyahu out of the prime minister’s chair and to keep him out.
Even if Netanyahu and the Likud are knocked out of power, there is a good chance that they would support major changes to the legal establishment from the opposition.
Their support would be more than enough to offset no votes from Labor and Meretz.
It is not at all clear that Lapid or Blue and White’s Benny Gantz, assuming it makes the next Knesset, would fight such a change if it came from Sa’ar and was designed not to have an impact on Netanyahu’s trial.
There are two reasons for this.
One, as stated above, Mandelblit himself and a rising number of legal establishment figures have reduced their opposition, provided that it does not impact Netanyahu’s trial.
The majority of the legal establishment would still oppose the change. Former attorney-general Yehuda Weinstein, who is a conservative or a moderate on most policy issues, still thinks the change is a bad idea.
But if there is reduced opposition from the legal establishment, then the question will not be seen necessarily as having to protect the Attorney-General’s Office from corrupt interference, but rather as part of a long-standing scholarly debate.
If such a point is reached, the truth is that neither Lapid or Gantz are particularly liberal about the legal establishment.
Both have broken with the courts on a number of ideological issues, and when they justify their rejection of changes to the legal establishment, they do not use Labor Party leader Merav Michaeli’s ideological preference for a progressive attorney-general and judges.
Rather, they say they want to protect the legal establishment from corrupt intervention by Netanyahu.
Minus Netanyahu, their views seem pretty close to former prime minister Yitzhak Rabin, who generally respected the judicial branch, but was not above circumventing it or comparing the High Court of Justice to B’Tselem in giving him headaches.
So whether regarding the Attorney-General’s Office or creating some new limits on the High Court’s jurisdiction, the likelihood of change being on the way is far higher in 2021 than it has been in a generation.