AG: PM not in contempt of court despite violating conflict of interest in overhaul

In response to petition from good governance group, Baharav-Miara tells High Court that Netanyahu’s conduct hasn’t crossed high bar required for him to be held in contempt

Left: Attorney General Gali Baharav-Miara at her welcome ceremony in Jerusalem on February 8, 2022. (Yonatan Sindel/Flash90). Right: Prime Minister Benjamin Netanyahu at the Prime Minister's Office in Jerusalem, on January 11, 2023. (Olivier Fitoussi/Flash90)
Left: Attorney General Gali Baharav-Miara at her welcome ceremony in Jerusalem on February 8, 2022. (Yonatan Sindel/Flash90). Right: Prime Minister Benjamin Netanyahu at the Prime Minister's Office in Jerusalem, on January 11, 2023. (Olivier Fitoussi/Flash90)

Attorney General Gali Baharav-Miara told the High Court of Justice on Monday that Prime Minister Benjamin Netanyahu was not in contempt of court when he announced that he would involve himself in legislation to overhaul the judiciary, despite her determination that doing so would be a conflict of interest — but she still strongly criticized his behavior.

Baharav-Miara’s response to the Movement for Quality Government’s (MQG) petition to the High Court of Justice marked a rare case of her siding with Netanyahu in recent months. Netanyahu’s allies have spoken openly about firing the attorney general, who has come out against the government’s judicial overhaul plans.

The good governance group had petitioned the High Court last month arguing that Netanyahu should be found in contempt of court over his March 23 speech, in which he declared that he was personally intervening in his government’s effort to radically curb the judiciary’s power. MQG argued that Netanyahu was in direct violation of the conflict of interest agreement he signed in 2020, under which he agreed to refrain from involvement in government matters that might impact his own ongoing criminal trial. Netanyahu’s speech two weeks ago came hours after the Knesset passed a law to shield him from being removed from office for breaking its boundaries.

But MQG’s stance failed to convince Baharav-Miara, who told the court in her response Monday that “from a legal point of view, a contempt claim must fulfill certain conditions, which have not been met in the current situation.” She maintained that contempt of court is an “extreme” charge that comes with a weighty punishment, adding that Knesset members have immunity from arrest.

Still, the attorney general wrote that her stance regarding the contempt of court “does not change the prime minister’s duty to uphold the law and avoid acting in a conflict of interest.”

Baharav-Miara notified Netanyahu the day after his March 23 speech that he had violated his conflict of interest agreement and had therefore broken the law.

Prime Minister Benjamin Netanyahu makes a statement to the nation on the judicial overhaul on March 23, 2023. (Screen capture)

In her Monday response to the High Court, the attorney general wrote that Netanyahu’s conflict of interest risk is greater than normal, rejecting his claim to the court on Sunday that he can help rule on how judges are picked and also ensure that no judges selected by an altered judicial selection panel ever rule on his legal cases.

“Without determining relevant limits and implementing them, the prime minister could find himself in systematic and open violation of the law,” she wrote.

The coalition is seeking to scrap the “seniority” clause that requires the longest-serving justice to replace the court’s president. That position is currently held by Esther Hayut, who will be retiring in October. Justice Isaac Amit is in line to replace her, but the coalition is seeking to have a more pro-Netanyahu judge heading the court. The Supreme Court president is responsible for picking the panel of judges of various trials and would be called upon to do so if an appeal of the prime minister’s case reaches the top court.

MQG expressed its “dismay [over] the attorney general’s rambling and evasive response.”

“It’s quite unfortunate that at the moment of truth, the attorney general chose to shrink from taking a clear stance,” the group says. “We hope the court will rule in our favor.”

For its part, the prime minster’s legal team maintained in its Sunday response that the consequences of the overhaul program are so far-reaching, giving rise to what they called a “national crisis,” that Netanyahu was obligated by dint of his office to be intimately involved in managing the situation.

Found and head of the Movement for Quality Government in Israel Attorney Eliad Shraga at a hearing of the Supreme Court, April 27, 2021. (Yonatan Sindel/Flash90)

But since one of the central pillars of the judicial overhaul program is to remake the Judicial Selection Committee, placing the appointment of all judges in the hands of the ruling coalition, MQG argued in a motion to the High Court on March 26 that Netanyahu was violating the conflict of interest agreement and was therefore in contempt of court.

This was based in part on the fact that Baharav-Miara updated the conflict of interests agreement in February, after the establishment of the new government a month earlier, writing that the original agreement meant Netanyahu was unable to involve himself in the judicial overhaul legislation.

In their response to the MQG petition filed on Sunday, Netanyahu’s attorneys insisted that the original conflict of interest agreement prohibited the prime minister from being involved in matters regarding the selection of judges themselves, not about the composition of the Judicial Selection Committee.

They also argued that his position as prime minister and the critical nature of the coalition’s judicial overhaul program meant he was obligated by his role to involve himself in the issue.

“With all due respect to any conflict of interest agreement, when there is an issue that the president says could lead to a civil war; when the president of the United States and world leaders express a position on an issue and discuss it with the prime minister; when the issue affects the security of the country and its economy, the prime minister must by virtue of his position manage the matter and be involved in it — and this has nothing whatsoever to do with his personal affairs. This is the meaning of the role of the prime minister, and this is the meaning of the choice of the citizens of the State of Israel,” wrote Netanyahu’s attorneys.

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