AG tells court to reject petition demanding PM recuse himself during trial testimony
Baharav-Miara notes response from government saying High Court lacks authority to force recusal; Netanyahu says petition trying to unlawfully drag judiciary into politics
Attorney General Gali Baharav-Miara told the High Court of Justice that she believes it should reject a petition calling for Prime Minister Benjamin Netanyahu to recuse himself while he testifies in his corruption trial later this month, shortly after the premier issued his own response dismissing the potential measure.
In her opinion, filed Sunday, Baharav-Miara wrote that the petition should be rejected, as “the prime minister maintains that in the event of a change in the factual basis, whereby his public position does not allow for the trial to be conducted, or if the trial harms his ability to function as prime minister, he will make it clear.”
Baharav-Miara also noted Cabinet Secretary Yossi Fuchs’s wish to add that a measure to force the prime minister to recuse himself would lack legal basis and that the court “has no authority” to make such a decision.
Her opinion marked a rare moment where the legal establishment was in sync with the government, given increasing tensions and repeated threats by ministers to try and oust Baharav-Miara.
The petition by a group of lawyers seeks to have Netanyahu recuse himself from office for the duration of his testimony in court, which is expected to last several weeks. He will likely need to testify four days a week unless other arrangements are approved.
In his response earlier Sunday, Netanyahu decried the petition as a “very serious attempt” to drag the judicial system into politics, “contrary to the law and contrary to the decision of the elected democratic institutions on whether the prime minister can continue to serve in his petition.”
Netanyahu’s response emphasized that according to the law and past court decisions, the prime minister can serve in his position until he is convicted. It added that recusal was irrelevant in current circumstances, emphasizing it could only be put into effect if the prime minister was physically incapable of performing his job.
He said the petition should be rejected outright, and stated that “the Honorable Court (and of course the attorney general) is not authorized to ‘declare’ incapacity and thus create it since there is no such ‘declaration’ in law.”
“The examination of incapacity will be made in a factual manner by the office holder himself (or his trustee), based on the simple factual question of whether he is able to fulfill his role or not,” he stated. “That is all.”
“If there is a dispute as to whether a certain situation should be considered for recusal or not — there shouldn’t be a recusal,” the response read.
The High Court had ordered Netanyahu to respond to the petition by December 1, as he was slated to begin testifying in court on December 2.
The start of his testimony has since been pushed back until December 10, after the Jerusalem District Court partially accepted a request by defense lawyers for a delay over concerns that they would not be able to prepare for the landmark appearance in time, due to Netanyahu’s intense schedule, as he deals with the wars Israel is fighting in Gaza and other fronts.
The prime minister has been charged with fraud and breach of trust in two cases and with bribery, fraud, and breach of trust in a third. He was indicted in January 2020, and a trial encompassing all three cases began in May of that year.
Netanyahu refused to step down when the indictments were filed, arguing that he was capable of standing trial while also leading the country. Previous petitions of the sort now before the court were also rejected.
Watchdog organizations petitioned the High Court in 2020, asking the court to rule that serving as prime minister while under indictment and on trial would be a disqualifying conflict of interest. During the hearings on that petition, the question arose of what would happen if Netanyahu was on trial during a war, to which his lawyers said he would be able to continue serving.
Netanyahu has consistently denied any wrongdoing and has claimed that the charges were fabricated in a witch hunt led by the police and state prosecution.
Netanyahu has so far not taken the stand, though he has appeared in court on a handful of occasions. Netanyahu is scheduled to be the first person to face cross-examination as the defense presents its witnesses in the three cases.
The trial has faced criticism over the slow pace of proceedings. As things stand, the proceedings, including potential appeals, have been seen as unlikely to end before 2028-2029.
