High Court freezes controversial interim state attorney appointment

Petition from Movement for Quality Government claims ‘grave concern’ that Justice Minister Ohana appointed Orly Ginsberg Ben-Ari to target law enforcement on behalf of Netanyahu

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)

The High Court of Justice on Wednesday froze the controversial appointment of a relatively junior official as acting state prosecutor ahead of hearing a petition that accuses the caretaker justice minister of using the move to obstruct the indictment and prosecution of Prime Minister Benjamin Netanyahu on corruption charges.

Justice Minister Amir Ohana announced Tuesday he would appoint Tel Aviv District deputy prosecutor Orly Ginsberg Ben-Ari as acting state attorney to replace Shai Nitzan, whose term as Israel’s top prosecutor ended Monday.

The appointment of a third-tier prosecutor to a temporary (though renewable) three-month position as state attorney has drawn criticism from the attorney general and others.

Ohana has been a vociferous critic of Nitzan and the state prosecution, accusing judicial authorities of conspiring to topple Netanyahu on false or trumped-up charges.

Attorney General Avichai Mandelblit, the state attorney’s direct boss, came out against the appointment on Tuesday, saying Ohana had overstepped the bounds of his caretaker position in picking her.

Supreme Court Justice Meni Mazuz at the Supreme Court in Jerusalem on March 22, 2019. (Yonatan Sindel/Flash90)

Civil Service Commissioner Daniel Hershkowitz, who by law must be consulted on the appointment, also came out against it on Tuesday on procedural and organizational grounds, saying the reshuffle of the state prosecution’s hierarchy could “undermine” its procedures and hamper its ability to do its job.

In a Wednesday morning petition to the High Court against the appointment, the Movement for Quality Government, a good governance group, expressed “grave concern that appointing [Ginsburg Ben-Ari to the] role of interim state attorney is extremely unreasonable and is entirely driven by external considerations.”

There are indications, the petition claimed, that the appointment was made out of considerations about “the gatekeepers and elements of the law-enforcement system pertaining to and related to Prime Minister Benjamin Netanyahu’s investigations.”

Supreme Court Justice Menahem Mazuz on Wednesday ordered a freeze on the appointment while the court hears the petition, and gave Mandelblit, Ohana and Hershkowitz 10 days to respond.

The stay order came just minutes before Ginsberg Ben-Ari was to take part in an official changing-of-the-guard ceremony at the Justice Ministry in Jerusalem.

Attorney General Avichai Mandelblit holds a press conference at the Justice Ministry in Jerusalem announcing his decision to indict Prime Minister Benjamin Netanyahu, November 21, 2019. (Hadas Parush/Flash90)

At the event, attended by the ministry’s top brass, Ohana called the High Court decision “lamentable,” but said he would not turn Nitzan’s farewell ceremony into a “battleground.”

“It’s a shame you won’t be able to hear the words of Attorney Ginsberg Ben-Ari, due to lamentable circumstances,” Ohana said in his speech at the event.

“These are complicated and sensitive times for the legal system and the prosecution,” he went on. “They almost demand that we take this event and turn it into a battleground. But not today. There are friends and family here. For my part, this will be a respectable event.”

He predicted his candidate would eventually be approved.

Mandelblit spoke a short time after Ohana, saying, “the minister and I put a great deal of effort into finding common ground over the appointment of an acting state attorney. I proposed several candidates. I regret that we did not succeed. The state attorney post is not supposed to be a ‘battleground’ between the minister and the attorney general. This isn’t about the individual, but about how we ensure that the state attorney can carry out their duties without fear.”

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)

Ohana’s position as justice minister in a caretaker government also puts him on shaky and unclear legal grounds. Since no coalition has been in place since the 20th Knesset voted to dissolve itself in January, with two subsequent elections in April and September failing to produce a parliamentary majority coalition, Ohana serves as a caretaker justice minister who has not, as required by law, been approved in a Knesset vote.

The decision to appoint Ginsberg Ben-Ari against Mandelblit’s wishes also runs counter to longstanding practice, according to which the attorney general has enjoyed wide latitude in selecting the next state attorney.

Ohana, a staunch ally of Netanyahu, was only appointed to the justice portfolio in June, by Netanyahu himself, and has spent the time since the appointment railing against the indictments against the prime minister, echoing in his rhetoric Netanyahu’s own claims of a conspiracy.

Movement for Quality Government head Eliad Shraga described Ohana’s move as problematic.

“In the middle of a legal proceeding conducted by the Prosecutor’s Office against defendant Netanyahu, who appointed Minister Ohana to his post for this very specific purpose — namely to execute targeted liquidation of the State Attorney’s Office — he appoints a person who does not have the skills required to perform that role,” he said in a statement.

State Attorney Shai Nitzan attends a Justice conference in Tel Aviv on November 4, 2019. (Flash90)

The left-wing Democratic Camp party also intends to file a petition against the appointment, the Kan public broadcaster reported.

Mandelblit, who in the past reportedly said he might use legal means to stop Ohana’s actions, is not planning on filing a petition himself for the time being, preferring to wait and see the outcome of legal action taken by others, Kan reported. However, he reportedly will not defend the appointment in court.

The attorney general said Tuesday there was a “legal impediment” to Ohana’s pick, arguing it was beyond the scope of what is permissible for an acting minister in a transitional government and thus constituted “unreasonable” government action.

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.

Mandelblit had reportedly rejected most candidates put forward by Ohana, including Ginsberg Ben-Ari, only giving approval to Deputy State Attorney for Criminal Matters Shlomo Lemberger to fill in for Nitzan.

Orly Ginsberg Ben-Ari speaks to the press at the Central District Court in Lod on August 11, 2015. (Flash90)

Ohana stressed in an interview with Channel 12 that he was not seeking a face-off with Mandelblit and had tried to win the attorney general’s backing for his appointee, but that Mandelblit was being “extremely unreasonable.”

“It will be a mistake if the attorney general doesn’t change his opinion,” he said Tuesday.

The justice minister also indicated he was prepared to defend the appointment in the High Court of Justice.

“I don’t intend to bow my head to someone who is not authorized to decide on this appointment,” Ohana said.

Prime Minister Benjamin Netanyahu speaks at an event opening the Brazilian Trade and Investment Promotion Agency in Jerusalem, December 15, 2019. (Hadas Parush/Flash90)

The developments come amid a current political stalemate, which has left Israel without a properly elected government for nearly a year. The Knesset dissolved again last week and a third round of elections is set for March 2, 2020.

Netanyahu is facing indictments of fraud and breach of trust in three corruption cases, and a charge of bribery in one of the cases.

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