Ben Gvir demands independent counsel, says he can’t rely on attorney general

Far-right minister slams Gali Baharav-Miara for ‘exceeding her authority’ by freezing move to reassign top cop; warns ‘day is coming when we will need to make a decision about her’

Jeremy Sharon is The Times of Israel’s legal affairs and settlements reporter

National Security Minister Itamar Ben Gvir seen at Ben Gurion Airport near Tel Aviv ahead of anti-government demonstrations, March 9, 2023. (Avshalom Sassoni/Flash90)
National Security Minister Itamar Ben Gvir seen at Ben Gurion Airport near Tel Aviv ahead of anti-government demonstrations, March 9, 2023. (Avshalom Sassoni/Flash90)

National Security Minister Itamar Ben Gvir has demanded Attorney General Gali Baharav-Miara allow him to secure private counsel, or represent himself, in current legal proceedings against him in his role as minister in the High Court of Justice.

In a sharply worded letter on Sunday, Ben Gvir chastised the attorney general for failing to consult him before ordering that the decision to remove the Tel Aviv District Police Commander Amichai Eshed from his position be frozen, and argued that positions she has taken against legislation advanced by his far-right Otzma Yehudit party showed he could not rely on her to faithfully represent him in court.

Later on Sunday, the national security minister said the government as a whole was frustrated by the attorney general. When asked in an interview whether she should be fired, he warned that “the day is coming” when the coalition headed by Prime Minister Benjamin Netanyahu will have “to make a decision about her.”

On Thursday, Ben Gvir announced that Eshed was being removed from his position and reassigned to a new role, in the immediate aftermath of Thursday’s anti-government protests against the judicial overhaul, saying the move was being made at the recommendation of Police Commissioner Kobi Shabtai.

The decision was widely criticized by opposition leaders who accused Ben Gvir of acting on political motivations, amid his reported frustrations with restrained police conduct at protests in Tel Aviv and near Ben-Gurion International Airport on Thursday, and at previous rallies. On Friday, Baharav-Miara blocked Eshed’s impending transfer due to what she said was a “heavy suspicion” over the legality of the decision and the considerations behind it.

Several organizations and Knesset members have petitioned the High Court against Ben Gvir, including a petition by the Movement for Quality Government in Israel (MQG) against legislation passed in December that expanded the national security minister’s authority over the police.

MQG on Friday filed a request for an interim order to the High Court asking that it prevent Ben Gvir from intervening in the matter of the police’s use of force and in the appointments of senior police officers regarding their management of public protests against the government’s actions.

National Security Minister Itamar Ben Gvir (center) with police officials ahead of a protest against the government’s planned judicial overhaul, outside the Knesset, February 20, 2023. (Arie Leib Abrams/Flash90)

“Unfortunately, this is not the first time in which you have made decisions on matters relating to me and my ministry without discussing matters with me,” wrote Ben Gvir, citing Baharav-Miara’s opposition to a law expanding the minister’s control over the police, and other laws promoted by his ultranationalist party.

“For these reasons, I don’t trust that you will faithfully represent me in the various petitions, and so it would be just, right and honest that I represent myself or privately, and will not need representation from the Attorney General’s Office whose positions always and categorically run contrary to mine,” wrote the minister.

To receive private counsel in legal proceedings over ministry policy, permission must be granted by the Attorney General’s Office, since that office usually performs this function.

In an interview with the Ynet news outlet, Ben Gvir said numerous coalition members were increasingly angered by the positions Baharav-Miara has taken against its policies and proposed legislation in recent months

“The day is coming when we will need to make a decision about her. I’m not speaking just about myself, I don’t make these decisions by myself… In this government, everything we want it’s ‘no, no, no.’ It shows how she is the very example of the need for legal reforms,” said Ben Gvir.

Baharav-Miara’s decision to freeze Ben Gvir’s decision on removing Eshed from office was widely panned by the right-wing, far-right and ultra-Orthodox coalition, with Likud MK Boaz Bismuth tweeting that her action demonstrated the need for legal reform in Israel.

Eugene Kontorovich, the head of the International Law Department at the conservative Kohelet Policy Forum, which has developed much of the government’s judicial and legal reform program, was also highly critical of the attorney general’s decision, charging that her move was politically motivated and exceeded the boundaries of her authority.

“Whatever the merits of the underlying decision, the ability of the attorney general to block such actions with a two-sentence note devoid of legal argumentation shows that the powers her office wields are political, not legal,” Kontorovich told The Times of Israel.

Attorney General Gali Baharav Miara at her inauguration ceremony in Jerusalem, February 8, 2022. (Yonatan Sindel/Flash90)

“That a politically unaccountable official can control all senior staffing decisions in the government demonstrates that she is the de facto prime minister,” he said.

Kontorovich added that the power to appoint and remove officials in government departments “is the essence of the power to run a government,” and that “power now lies in the hands of unelected officials selected by other unelected officials.”

“The fact that she can immediately freeze a personnel decision just by calling it ‘problematic’ without explaining her rationale demonstrates that she is the one who is above the law,” he said.

But the Movement for Quality Government insisted that it was Ben Gvir who had exceeded his authority in two illegitimate ways.

MQG attorney Ori Hess said that Ben Gvir had not violated any law in having Eshed removed from office but argued that, when exercising their authority, ministers and other public officials have to do so in accordance with proper principles and considerations.

A police officer, right, prepares a stun grenade moments before he hurled it into a crowd of demonstrators during a mass protest in Tel Aviv, March 1, 2023 (Video screenshot; Used in accordance with Clause 27a of the Copyright Law)

Despite this, Hess and MQG’s petition notes that Ben Gvir has been giving specific orders to the police as to how to respond to the anti-government protests, such as which highways the police should ensure remain free of demonstrators.

“In all democratic countries, the police are supposed to enforce the law, not be the private militia of a politician,” he told The Times of Israel.

The attorney said it was highly undesirable in a democracy for the minister to tell the police what tactics to use to disperse demonstrators or to issue orders regarding other operations at the tactical level.

According to media reports, Ben Gvir expressed deep frustration with how the protests in Tel Aviv had been handled by the police, and later that same day had Eshed removed from his command, added the attorney.

“This is a political purge of the senior police ranks carried out due to improper considerations and while exceeding his authority,” MQG’s petition claims.

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