There is no legal obstacle to Prime Minister Benjamin Netanyahu forming and leading the next government despite the criminal charges against him, Attorney General Avichai Mandelblit wrote Thursday in an opinion submitted to the High Court of Justice.
The opinion was a response to a petition filed to the High Court that will be heard Sunday in front of an expanded panel of 11 judges.
“Despite the significant difficulties that arise in this matter, they do not constitute grounds for judicial intervention,” Mandelblit wrote with regard to the bribery, fraud and breach of trust charges that he himself in January filed against Netanyahu in three cases.
“All this, without detracting from the severity of the indictment filed against Netanyahu, and without undermining the consistent judgment of the honorable court regarding the need for strict adherence to incorruptibility among elected officials,” he added.
“The fact that the legislature did not make an explicit provision regarding the situation in which an indictment is filed against a prime minister indicates a conscious choice that a prime minister may continue to hold office up until his conviction by a final verdict with regard to an offense where there is moral turpitude,” Mandelblit continued.
Under the terms of the coalition deal between Netanyahu’s Likud and the Blue and White party, if the court disqualifies Netanyahu as prime minister in the first six months of the new coalition’s lifespan, there will be new elections.
The Movement for Quality Government, one of the groups petitioning to disqualify Netanyahu from forming a government, issued a scathing critique in response to the attorney general’s opinion.
“Mandelblit is hiding behind vague words and legitimizing corruption,” the group said in a statement. “We are saddened by this weak response from the person in charge of upholding the law.
“We are sure the court will intervene and show a red card to [the notion of] a criminal defendant forming the government.”
Earlier, President Reuven Rivlin wrote with regard to the petition to the High Court that his office does not have the authority to discuss the issue of Netanyahu’s candidacy to form a government, which, he said, was a question for the justices.
Netanyahu’s supporters charge that the court lacks the legal authority to rule against Netanyahu, as Israeli law only requires a prime minister to resign if he or she is convicted of a serious crime and all appeals are exhausted.
The petitioners, however, argue that the law only refers to an already-elected prime minister. A member of Knesset under indictment should not be appointed prime minister in the first place, they are arguing, in keeping with the longstanding standard for other cabinet ministers.
In its initial response to the petitions, the Likud party on Tuesday told the court that if it disqualifies Netanyahu it will be intervening in the constitutional authority granted by law to the president and the Knesset.
Netanyahu’s attorneys also submitted an initial response to the petitions, saying that the petitioners were trying to “drag” the court to “undermine the holy of holies of our constitutional regime, to undermine the right of the public to choose who will lead it.” They insisted the court “has no legal authority to disqualify Prime Minister Netanyahu.”
The High Court is also due to hear a petition against the coalition agreement between Likud and Blue and White after having previously refused to rule on petitions regarding the issue, arguing that they were hypothetical.
The coalition deal struck on April 20, which will end over a year of political deadlock if it produces a government over the next two weeks, will see Netanyahu serve as prime minister for the first 18 months, to be replaced by Blue and White leader Benny Gantz for the subsequent 18 months.
Many have speculated that Netanyahu will not honor the rotation agreement that requires him to hand over power to Gantz in October 2021. Gantz, therefore, has been working with Likud to pass a bill anchoring the necessary mechanism in the law, which involves changing two of Israel’s constitutional Basic Laws.
Such significant changes to the Basic Laws, weakening the power of the Knesset majority to rein in the government, has been criticized in some quarters as detrimental to democracy.
That legislation passed its first Knesset reading on Thursday.
Mandelblit, in his opinion to the court, also wrote Thursday that while he was highly critical of aspects of the coalition agreement, there was no legal impediment to it either.
The prime minister faces seven counts of three criminal charges: fraud and breach of trust in Cases 1000 and 2000, and bribery, fraud and breach of trust in Case 4000. Netanyahu denies the charges and claims he is the victim of an “attempted coup” involving the opposition, the media, the police and the state prosecution.
His trial was pushed off by two months just two days before its scheduled March 17 opening hearing, after Justice Minister Amir Ohana declared a “state of emergency” in the court system in light of the coronavirus pandemic.
The courts administration announced last week that in the wake of an easing of coronavirus restrictions, it would be expanding its activities from May 3, meaning there was no longer an impediment to starting Netanyahu’s corruption trial.