Will the rule of law survive the hardball Israeli politics of 2019?

Will the most recent election lead to balancing out some of the latest trends so that conflict over the rule of law calms down a bit?

FORMER JUSTICE MINISTER Ayelet Shaked converses with Prime Minister Benjamin Netanyahu at the Knesset. (photo credit: Courtesy)
FORMER JUSTICE MINISTER Ayelet Shaked converses with Prime Minister Benjamin Netanyahu at the Knesset.
(photo credit: Courtesy)
It was May 2012 and a battle royale was about to erupt between two of the country’s key gatekeepers who were supposed to be on the same page.
The Magazine has learned that then-state comptroller Micha Lindenstrauss requested a special closed one-on-one meeting on short notice with then attorney-general Yehuda Weinstein to discuss explosive developments in the “Harpaz Affair,” an alleged 2010 plot by Boaz Harpaz to illegally undermine then-defense minister Ehud Barak’s choice of Yoav Galant to succeed Gabi Ashkenazi as IDF chief of staff.
The Harpaz Affair at one point threatened to drag down then IDF chief-of-staff Ashkenazi, his successors Gadi Eisenkot and Benny Gantz, Barak, current Attorney-General Avichai Mandelblit and other top officials.
While it morphed into all sorts of side issues, including highly problematic covert spying on each other, at its center was a fight between Ashkenazi and Barak about who would be viewed by Israeli society as the country’s No.1 “Mr. Security.”
Lindenstrauss had shocking new evidence he wanted to share with Weinstein that could break the case open and shake the nation to its foundations.
But some strange things happened leading up to the meeting.
As Lindenstrauss was on his way to the meeting, the Magazine has learned, he called Weinstein to tell him he was also bringing a top official from his office. In response, Weinstein decided to bring along then-state attorney Moshe Lador.
At the meeting itself, in spite of the revelatory evidence presented, Lindenstrauss did not officially refer the evidence to Weinstein under section 14(3) of the comptroller statute. This is crucial, as only such referrals mean the comptroller is officially suggesting that the attorney-general view the evidence as the basis for opening a criminal investigation. In terms of establishing authority, only this kind of a referral moves a file from an ethics probe by the comptroller to the attorney-general doing the heavy lifting – in which case the prosecution and the police throw their full criminal probe resources into a case.
At a later date, and after already having leaked large portions of evidence to some of the case’s suspects as part of sharing with them a draft of an impending comptroller report, Lindenstrauss said that Weinstein should have been criminally probing the suspects as early as 2011.
In 2011, some of the evidence had already been shared with other prosecution officials, but not with Weinstein and, once again, not with an official request to open a criminal probe. Lindenstrauss and Weinstein then went after each other publicly for not doing their jobs properly, and their relationship was never fully mended.
WHY SHOULD anyone care in 2019 about the 2011-2012 fight over the Harpaz Affair?
Because possibly more than at any point since the founding years of the state and the legal establishment, the last year has seen the gatekeepers of the rule of law – from the Supreme Court to the attorney-general-prosecution to the state comptroller – under unprecedented levels of attack.
The fight between Weinstein and Lindenstrauss was not just a personal one.
Rather, it was part of a broader ideological dispute about the roles of the various gatekeepers. This is a fiery debate that has hit record levels of intensity.
Many had thought that Ayelet Shaked, justice minister from 2015 to April 2019, had wanted to radically alter the authority of the Supreme Court. However, Shaked – for either strategic or ideological reasons – was open to compromise with the judiciary and never intervened in public corruption issues.
Most importantly, she stayed far away from making any statements about the criminal probe into Prime Minister Benjamin Netanyahu. Furthermore, at every stage, she made it clear she would support Mandelblit’s decision on the case as a worthy and apolitical decision.
Shaked also never took aim at the comptroller. In contrast, Acting Justice Minister Amir Ohana (still in office at press time) has openly accused the state prosecution of manufacturing criminal probes against him so that they can blunt his ability to criticize them and their conduct of the Netanyahu cases (he has offered no evidence). Ohana has also unleashed accusations against the judiciary, claiming that its judges often ignore considerations of justice, saying that he could see ignoring certain rulings and telling a story about “when I lost faith” in the courts.
The Magazine spoke to a range of top current and former legal officials on a variety of issues regarding the rule of law gatekeepers. Many of them slammed Ohana as swimming in waters over his head as justice minister. They add that the role of justice minister was and should be to defend the rule of law and to aspire to be apolitical. In contrast, they say that Ohana does not concern himself with the rule of law and is improperly focused solely on the interests of his specific voters and party.
With that view of Ohana, some might misunderstand the current situation as solely deriving from the dispute over Netanyahu’s criminal cases. True, this dispute has supercharged aspects of the debate over the gatekeepers’ role and power, but a debate over their authority and role has blown up steadily since the 1990s when the Supreme Court started to assert greater judicial review powers over the Knesset following the Knesset’s passing of the Basic Laws.
In some ways, Supreme Court President Esther Hayut has strongly defended the court’s independence and been ready to issue risky rulings. Agree or disagree, a notable risky ruling was the disqualification of certain Otzma Yehudit MKs from the 2019 elections without disqualifying any Israeli-Arab MKs. Another risky ruling was forcing the state to resolve the issue of haredi integration into the IDF.
On the flip side, Hayut has inexplicably avoided ruling on the Settlements Regulations Law since February 2017 and the Jewish Nation-State Law since July 2018. Any ruling the Supreme Court issues will anger an important constituency, but some silences can be deafening.
Moving to the office of the attorney-general, recent debates over his authority and loyalties date back to 1997 and 2000 when the Bar-On Affair blew up and the government strengthened the independence of the attorney-general in response. The Bar-On Affair involved a plot by Shas Party leader Aryeh Deri to get Roni Bar-On appointed attorney-general as part of a framework of political horse-trading, including that the criminal case against him would be dropped.
It all imploded publicly. Bar-On resigned, Deri eventually went to jail for more than two years and the government gave control over appointing the attorney-general to a panel of mostly non-politicians.
Politicians angered by Mandelblit’s readiness to indict Netanyahu and other ministers (Deri will likely be indicted anew in the coming months) have called for returning political control of appointing Mandelblit’s successor and splitting the attorney-general’s powers so that his authority is reduced.
There are also fights with the attorney-general about where he can disagree with the government over policy.
DURING WEINSTEIN’S era, which ran until 2016, sometimes certain ministers would tell him that his job was merely to write whether he thought a proposed bill was problematic or not.
The Magazine has learned that Weinstein was asked not to explain why bills might be problematic or to interpret issues that might end up before the High Court of Justice, all of which could confuse the political class. The attorney-general never accepted this, insisting on expressing the nuances and resisting being boxed into a black-and-white viewpoint ignoring reality. Top officials told us that the attorney-general is also bound to bang heads with the government when it comes to minority rights, which the coalition majority is often less concerned about.
Some of the trickiest issues, though, are not statutes – but policy or government decisions in times of crisis. For example, officials told us that technically a decision of the full cabinet, or at least the security cabinet, is necessary to declare war.
However, it is also mostly accepted that the prime minister and the defense minister can take some limited military actions on their own. In this regard, Israel is like many states in modern times where events move faster than ever before and many conflicts are low-intensity military actions short of full-scale war.
Can the prime minister and defense minister order a limited preemptive air strike on Iranian nuclear facilities without cabinet authorization? What if they are reasonably certain of a massive Iranian counterstrike raining down 1,000 rockets on the Israeli home front?
Here, top legal officials say, is where the attorney-general’s role as an interpreter is critical and can again land him at loggerheads with some politicians or even in the middle of internal cabinet squabbles.
WHILE THE debate over the attorney-general’s role is longstanding, the debate over the comptroller’s role is far more recent. It really exploded only in July and may currently be the most important dispute. Though most of the issues heated up intensely only this summer, in some ways the debate can be traced back to Lindenstrauss taking over the role in 2005.
He transformed the office from a bean counter-style office that put out reports on non-hot-button issues and which the political arena largely ignored, to an office that broke into the headlines on top political issues in real-time.
Lindenstrauss’ successor, Joseph Shapira, whose term as state comptroller was from July 2012 to July 2019, started off with a more modest tone and intentions.
Unlike Lindenstrauss, who not only ideologically believed in a stronger gatekeeper role for the comptroller but also lived for media attention, Shapira is instinctively more shy with the media. He was hand-picked by Netanyahu due to his low-key temperament. Shapira was expected to be less of a thorn in the side of the political class, but sometimes seemingly against his will, eventually led the office into major controversies against both the prime minister and wife Sara.
He also weighed into a variety of other issues: public corruption, the African migrants debate, criticism over the government’s lack of readiness for the Hamas tunnel threat during the 2014 Gaza War and other major issues. Under Shapira and a comptroller committee for evaluating public servants’ requests to receive funds or donations under potentially questionable circumstances, Netanyahu was repeatedly blocked from receiving financial assistance from allied tycoons to pay for the legal defense of his corruption cases.
All of this changed virtually overnight in July when Matanyahu Englman was appointed as the new comptroller. Critics view Englman as practically “Satan.” In one fell swoop, Englman: halted reports scheduled to come out during the election period which might embarrass Netanyahu, ended real-time reports, eliminated the comptroller department that probed corruption, fired “problematic” members of the committee overseeing public servants’ requests to receive donations (who had blocked Netanyahu’s requests) and said that future reports would focus as much on positive achievements of government ministries as highlighting their failures.
Critics said that he changed the comptroller’s office, an office dedicated to finding shortcomings and suggesting ways to improve, to basically becoming another public relations arm and enabler of Netanyahu.
Yemina MK Betzalel Smotrich had called for reducing the gatekeeper powers of the comptroller, but now that was not necessary. The new comptroller had snipped off his own wings and was no longer a threat or a gatekeeper, but those critics of Englman who view the issue as merely relating to Netanyahu are again missing a large part of the story.
Former top leaders of the legal establishment have told the Magazine that they have as much or more to criticize about Lindenstrauss and Shapira for being overly activist, as they do about Englman for yielding too much of his gatekeeper role.
Regarding the Englman revolution, these leaders, who at minimum represent some large segments of the legal establishment, said they do criticize some of his changes, but praise others. Some of these officials feel that Lindenstrauss and Shapira went too far in their delving into corruption issues.
The Harpaz Affair is a case in point. Some insiders of the legal establishment believe that Lindenstrauss should have handed over the evidence earlier to Weinstein with a clear request to probe it criminally and without leaking it to the suspects.
Alternatively, they would say that Lindenstrauss could have taken the file as far as he wanted as long as he clearly kept it out of the criminal sphere and did not try to imply that Weinstein or the prosecution were shirking their duties.
But the critique says that there is a clear line between ethics and criminal probes and that the moment the comptroller thinks a probe may have criminal aspects to it, it is his duty to halt and immediately refer the file to the attorney-general. That would be in favor of Englman. However, these same officials said that Englman’s elimination of the comptroller department for probing corruption goes too far. After all, the Knesset’s comptroller law empowers him to protect whistleblowers on corruption issues. How can the comptroller exercise these powers if he has no department at all to look into corruption issues?
Supporting Englman again, some top legal officials said that the comptroller was never intended to review problems as they develop in real-time. In fact, they said that such real-time probes can interfere with the attorney-general’s job or with the ministries’ regular ability to function. Pressed that comptroller reviews in real time have a stronger chance of fixing problematic behavior by government ministries, they responded that after-the-fact probes have the same impact of repairing and ending damaging ministries’ behaviors in the long run.
At the same time, they swung back to criticizing Englman for giving the impression that he will probe corruption neither in real time nor after the fact. Moreover, they said it is improper for Englman to change the comptroller’s focus to being positive as opposed to highlighting problems. The title “comptroller,” they pointed out, is very clearly designated as a corrective office and not another spin operation – of which politicians have plenty.
SOMEWHAT DIZZYINGLY, some of the officials then surprisingly support Englman when it comes to his push, and his new committee’s push, to allow the premier to receive a loan to pay his legal defense fees. They explain that no one would question Netanyahu getting financial help from a rich brother and that there is no rule that says a prime minister must become poor to defend his legal cases. These officials acknowledge that Netanyahu is reportedly very wealthy, but that as long as the individual giving him a loan has no business interests in Israel that would be a conflict of interest, there should be no ban (the committee eventually approved a loan by tycoon Spencer Partridge).
Next, the officials were questioned about whether Englman had violated any laws or rules by appointing reportedly openly Likud-supporting members to the committee to ensure Netanyahu’s request would be approved. They said it would be improper to appoint members to the committee if they were connected to the Likud, but that reviewing this was a job for the current attorney-general.
With the war over Englman’s role combining with the ever-intensifying war over the role of the courts and the attorney-general, are these fights over the rule of law the worst the country has ever seen? Here, top officials tried to reassure the Magazine that “there is no need to freak out,” explaining that the struggle between the political class and the legal establishment gatekeepers “was not born yesterday” and that as long as the gatekeepers do their job, a level of debate is even healthy.
On the negative side, some of these officials feel that more top politicians have “lost their sense of brakes” in that they are far more willing to personally attack the gatekeepers of the law and with more brazen language.
Will the most recent election lead to balancing out some of the latest trends so that conflict over the rule of law calms down a bit? One official said, “These things never go to the moderate middle, they always swing to the other extreme.”
If that is true, then the recent conflagration the public has seen over the rule of law and its gatekeepers may only be a warm-up for the next fiery round.