AG says minister cannot legally promote junior official to acting state attorney

Move to name deputy Orly Ginsberg Ben-Ari as top prosecutor extremely unreasonable for transition government, Mandelblit argues, putting kibosh on posting

Justice Minister Amir Ohana (L) with his candidate for interim state attorney Orly Ginsberg Ben-Ari, December 17, 2019. (Justice Ministry)
Justice Minister Amir Ohana (L) with his candidate for interim state attorney Orly Ginsberg Ben-Ari, December 17, 2019. (Justice Ministry)

Attorney General Avichai Mandelblit on Tuesday said there was a “legal impediment” to Justice Minister Amir Ohana’s contentious appointment of a relatively junior official as interim state prosecutor, setting up a public clash between the senior officials.

Ohana on Tuesday announced that he planned to appoint Central District deputy prosecutor Orly Ginsberg Ben-Ari as interim state prosecutor to replace Shai Nitzan, whose term ended Monday.

Mandelblit has said in closed meetings that he would strongly oppose any appointment by Ohana that is unacceptable to him, and that he may take the matter to the High Court of Justice, Hebrew-language news outlets reported.

Of five candidates put forth by Ohana, including Ginsberg Ben-Ari, Mandelblit rejected four, giving his approval only to Deputy State Attorney for Criminal Matters Shlomo Lemberger, according to the reports.

The appointment is overshadowed by the corruption charges against Prime Minister Benjamin Netanyahu that were formulated by Nitzan and announced recently by Mandelblit, which led Ohana, a Netanyahu loyalist, to launch a scathing attack on the state prosecutor’s office and other law enforcement bodies, accusing them of a conspiracy to topple the prime minister with false corruption charges.

“I have no doubt that Orly will work to preserve everything worth preserving, and contribute to strengthening public confidence in this hugely important system,” Ohana said in a statement Tuesday, hinting at criticism he has previously voiced against the justice system and the state prosecution.

Attorney General Avichai Mandelblit (left) and Justice Minister Amir Ohana attend a conference in Airport City, outside Tel Aviv, on September 3, 2019 (Tomer Neuberg/Flash90)

In a letter sent to Ohana, Mandelblit wrote that the appointment was so problematic that there was a “legal impediment” to approving it, meaning it could be struck down by a court.

He cited the fact that Ohana, as acting justice minister in a caretaker government that does not have the confidence of the Knesset, was not legally allowed to make far-reaching decisions like the appointment of a junior official to a senior post.

The appointment is extremely unreasonable, Mandelblit said, describing it as far outside the realm of what is legally permissible for a transitional government.

Earlier Tuesday, Civil Service Commissioner Daniel Hershkowitz warned that the appointment could hamper the work of the state prosecution.

In a letter to Ohana opposing the move, Hershkowitz wrote that Ginsberg Ben-Ari was a qualified candidate, but that her third-tier position in the state prosecution — below the state prosecutor and the district prosecutor — meant “she was not part of the senior leadership in the organizational hierarchy, a fact that could undermine the proper functioning of the state prosecution.”

Civil Service commissioner Daniel Hershkowitz attends a State Control committee meeting in the Knesset, on December 3, 2018. (Miriam Alster/Flash90/File)

Considering the “unique characteristics of the post,” Hershkowitz added, “my position is that at this time it would be proper to appoint the most senior official in the prosecution that the attorney general agrees to.”

Ohana on Monday a demand by Hershkowitz that he be consulted over the appointment of an acting state attorney.

Hershkowitz had informed Ohana and Mandelblit that by law they must consult with him before appointing a state attorney. But Ohana said Monday that he had already discussed the matter with Hershkowitz several times, including at two meetings, during which the names of all candidates were raised. The obligation under law to consult with the commissioner was thus “fulfilled, and when deciding from among the candidates, none of them will be a stranger to you,” Ohana wrote.

The move comes in the midst of the current political stalemate, which has left Israel without a properly elected government for nearly a year and means that Ohana himself serves only in an interim capacity. Two rounds of elections in April and then September failed to produce a ruling coalition or unity government. The Knesset dissolved again last week and third elections are set for March 2.

Attorney General Avichai Mandelblit (L) and Justice Minister Amir Ohana attend an annual Justice Ministry conference in Airport City outside Tel Aviv on September 3, 2019. (Tomer Neuberg/Flash90)

Normally, a new state attorney is selected by a special committee appointed by the justice minister and headed by the attorney general, the direct superior of the state prosecutor. The attorney general is usually given freedom to choose the candidate. In the current political stalemate, Mandelblit has said that since Ohana is only serving in a caretaker government he does not have the authority to form that committee. Instead, Ohana is only authorized to appoint an acting state attorney whose tenure must be extended every three months.

Ginsberg Ben-Ari has worked in the State Prosecutor’s Office for 28 years in a number of senior positions. She has extensive experience in the criminal and security fields and currently serves as head of the State Prosecutor’s Security Forum.

“After several meetings, consultations and discussions I had with various parties, including Civil Service Commissioner Prof. Daniel Hershkowitz and Attorney General Dr. Avichai Mandelblit — I made a decision,” Ohana said in his statement.

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