In early May, the High Court of Justice conditioned green-lighting Prime Minister Benjamin Netanyahu to form the current government (despite his pending indictment for bribery) on a commitment by Attorney-General Avichai Mandelblit to rein in any conflicts of interest.
The justices were especially concerned about Netanyahu trying to influence legal appointments to tamper with his bribery trial. Yet, a month later, Mandelblit has not presented anything. He has been granted three extensions to do so. The latest was an extension granted on Tuesday until at least June 15.
It is not even clear whether what the state presents on June 15, if it does not seek more extensions, will be a firm plan to tackle problematic conflicts and Netanyahu’s impact on appointments or just an initial update.
This means that six weeks after the High Court green-lighted Netanyahu on condition that the issue be under control, there likely will still be no control, and it is unclear when there will be.
And there are plenty of major appointments on deck that could impact Netanyahu’s legal fate. There is currently no state attorney, the official who heads the nation’s prosecution. A combination of Mandelblit and a selection committee with input from the political and legal classes will select a new one. Acting Israel Police Insp.-Gen. Moti Cohen has been in charge for around 18 months in a temporary status. His new boss, Public Security Minister Amir Ohana, has not committed to keeping him in the job and may announce a replacement in the coming weeks.
When Ohana was acting justice minister, he implanted multiple candidates to be temporary state attorney. They were viewed by the legal establishment as unmitigated disasters picked to cause chaos and to
politicize any legal actions against Netanyahu.
Mandelblit himself will be replaced in February 2022. This will be only a few months after Blue and White’s Benny Gantz is due to take over from Netanyahu. But Netanyahu likely will have a joint veto over
key appointments in his role as alternate prime minister.
Five High Court justices, representing one-third of the bench – Hanan Melcer, Neal Hendel, George Kara, Uzi Vogelman and Supreme Court President Esther Hayut – will be replaced in the next four years. Netanyahu also may have joint veto power over who replaces them.
From the police to the prosecution to the attorney-general to the High Court – every facet of the legal system will change. Though Netanyahu’s indictment is already in the hands of the courts, a probe into his alleged misreporting of gains in stocks and a new probe of his wife, Sara, is still in the hands of the police and the prosecution.
Even regarding his case, if Netanyahu engages in any kind of plea-bargain negotiations later in the trial, whoever the new attorney-general is may make the call about whether to grant him lenient treatment. Justices appointed to the High Court may decide Netanyahu’s fate on any appeal from whatever verdict is reached by the Jerusalem District Court.
What progress has been made?
Last week, Mandelblit sent Netanyahu and all of the ministers a questionnaire to disclose all possible conflicts of interest.
According to the questionnaire, a copy of which was obtained by The Jerusalem Post, the back-and-forth process between Netanyahu and Mandelblit over clarifying disputed issues seems like it easily could be drawn out into August and maybe even beyond.
Each time Netanyahu is asked for information or Mandelblit presents Netanyahu with a proposed conflict-of-interest arrangement, Netanyahu has weeks to consider the issue. Mandelblit then has weeks to consider dilemmas raised by the prime minister.
An entire additional round of consultations and time periods is set off once Mandelblit wants to try to publicize the arrangement. This is all at the formal level. But the informal truths are at least as important. As noted by the NGO lawyers trying to disqualify Netanyahu in early May, all of the Bezeq-Walla Affair (Case 4000) came out of the prime minister concealing aspects of his relationship with Bezeq and Walla owner Shaul Elovitch in two rounds of disclosures to Mandelblit and to the state comptroller.
If Netanyahu has proven himself to be serially incapable of full disclosure (this alone would not make him guilty of a crime), what is the point of a conflicts process built on what he chooses to disclose?
What if Mandelblit is going to go beyond Netanyahu’s disclosures?
If he will invoke his own limits on Netanyahu’s involvement in legal appointments, based on the pending indictment, then what is the purpose of the disclosure process and of delaying publicizing the arrangement for months?
Finally, as long as Netanyahu is prime minister or even alternate prime minister, he will control the Likud, the right-wing bloc and have a joint veto with Gantz on all major appointments.
It does not matter whether he is in the room to interview or debate an appointment. Someone from the Likud who takes orders from him will be in the room at all times.
If that is true, then isn’t the idea of a conflicts arrangement a farce, just as the NGO lawyers argued in early May?
In fact, in a previous extended interview, Yuval Feldman of the Israel Democracy Institute and Bar-Ilan University slammed the entire practice of conflicts-of-interest declarations as a conceptual failure.
Under the current approach, he said, in many cases the tactic is “harm reduction. Since we cannot prevent all harms, we ask people to disclose conflicts of interest.”
Admitting that declaring conflicts of interest “prevents some problems and conflicts of interest” situations from going forward, he argued that in many instances, declarations simply free people up “to behave in a corrupt way. By allowing people to say, ‘What I am doing is within the law’ and announce their conflict of interest... you make people worse because they think: Now I am free to behave as I want, instead of making them act better,” he said.
In essence, he said, conflicts of interest often mean that there is “disclosure that bad people want to do bad things.”
“And if you look at it from the perspective of good people who might be looking for excuses to promote their self-interest while maintaining an ethical self-image,” declarations of conflict of interest send the message that you can “keep up what you are doing. This makes the situation worse,” Feldman said.
At the end of the day, the High Court, Mandelblit and politicians like Gantz and Justice Minister Avi Nissenkorn will be the only real defense – if there is any – against improper interference with legal appointments.