High Court set to hold hearing on whether Netanyahu can form government

The High Court of Justice on Tuesday morning will hold a preliminary hearing on whether a lawmaker facing criminal indictment can be tapped to form a coalition, a potentially high-stakes decision that could impact Prime Minister Benjamin Netanyahu’s political future.

The hearing is in response to a petition submitted by attorney Dafna Holtz-Lachner in the name of a group of 67 well-known public figures, academics and tech executives aimed at clarifying the status of Netanyahu, who has been charged in three criminal cases..

The petition argues that even if Netanyahu could not be asked to resign, as caretaker prime minister, the court should rule on his eligibility to be tasked with forming a coalition government.

Attorney General Avichai Mandelblit on November 21 announced charges against Netanyahu in a trio of corruption cases. Netanyahu has indicated in recent days that he will likely seek parliamentary immunity, potentially delaying or frustrating efforts to bring him to trial.

Tuesday’s hearing is set to take place at 9 a.m. before a three-judge panel led by Chief Justice Esther Hayut and including Deputy Chief Justice Hanan Melcer and Justice Uzi Vogelman.

Among the numerous possibilities Tuesday, the court could swiftly rule that it will not intervene in the affair, schedule a second hearing before a larger panel, or defer any hearing to a time after the March elections when the issue might become an urgent concern.

The petition argues that the current law’s leniency toward an indicted prime minister only refers to a serving premier, not an MK seeking a new appointment to the post. Netanyahu has been interim premier in the absence of a Knesset mandate since December 2018, and is thus in the position of a lawmaker seeking an appointment, not a serving prime minister.

Israeli law requires an indicted minister other than the prime minister to resign their post. Under that standard, the petition asks, can an MK in a similarly compromised legal position be appointed prime minister in the first place?

The High Court had asked Mandelblit to provide a legal opinion of his own on the matter, but he responded by saying that he wanted to wait until after the court ruled on whether it will make a decision.

The appeal against Netanyahu’s eligibility for reelection comes as the prime minister has been accusing prosecutors, the media and the judiciary of working together to bring him down with trumped-up corruption charges.

The charges against Netanyahu include breach of trust, fraud and, in the most serious case, bribery.

Netanyahu on Monday told the High Court that it was “inconceivable” for Mandelblit to decide who will be the next prime minister, lamenting the charges the attorney general had leveled against him.

“It is inconceivable that one public official, the attorney general, as important as he is, will determine instead of the general public along with its representatives in the Knesset who can run the state and who cannot,” Netanyahu wrote. “In a democracy, those who decide who will lead are the people — the people, and no else.”

Netanyahu’s legal woes are partially responsible for an unprecedented year-long political deadlock that will see a third election in 11 months held on March 2, 2020. The election was called after Netanyahu twice failed to form a government, following the April 9 and September 17 elections. Challenger Benny Gantz of the Blue and White party also failed in his attempt to cobble together a ruling coalition last month.

The centrist Blue and White has refused to join a coalition either with Netanyahu as a prime minister under indictment or one that would require it to support parliamentary immunity for the longtime premier.

Israeli law stipulates that a prime minister is only required to resign after he or she is convicted of a serious crime and all appeals have been exhausted. But judicial precedent from the early 1990s and longstanding practice have set a stricter standard for other ministers, who have been forced to resign from their cabinet posts, at least temporarily, once indictments have been announced in their cases.

Netanyahu must file a request for immunity in the three cases against him later this week, or automatically forfeit his right to do so.

Though the premier is far from guaranteed to get a Knesset majority to support an immunity bid, merely asking for it will delay any potential trial by months.

Laying the groundwork for his immunity bid, Netanyahu told Likud party activists at an event Sunday evening that seeking immunity from prosecution is not anti-democratic, but rather a “cornerstone of democracy.”

Speaking to supporters at a Hanukkah menorah-lighting ceremony at the Dan Panorama Hotel in Tel Aviv, Netanyahu said that within two days, he would announce his decision as to whether or not he will seek immunity from the corruption charges against him.

“The only immunity I am seeking right now is immunity from idle propaganda,” he declared, attacking the rival party Blue and White for “talking crap all day with immunity, immunity, and more and more immunity.”

An unsourced TV report on Monday, which claimed that Netanyahu had filed for immunity, was swiftly denied by Knesset Speaker Yuli Edelstein.

Earlier Monday, Netanyahu’s staff invited the media to a live statement to the press for 8 p.m., only to cancel it just half an hour later.

Netanyahu was believed to have planned to formally announce he would be seeking immunity.

It was not immediately clear why Netanyahu canceled the announcement, which came shortly before hundreds of his supporters gathered Monday evening at Habima Square in Tel Aviv to protest against the criminal cases and support his immunity bid.

Netanyahu has long evaded questions on whether he will seek to avoid criminal charges through immunity. But in a Channel 12 interview days before the April elections, he clearly stated he would not make any move to shield himself from prosecution if charges are announced.

A request from the Knesset for immunity is seen as unpopular among all voters, even among many of the prime minister’s supporters. A poll published Sunday evening by Channel 12 news found that 51 percent of Israelis oppose such a move, while only 33% support it.

His request must be weighed by the Knesset House Committee before it can be voted upon by the plenum, but due to the lack of a functioning legislature amid an ongoing political deadlock, and with new elections set, the Knesset will likely only be able to review and decide on his request after a coalition is formed — if it is formed — following the March 2 vote.

Blue and White said in a statement Monday evening that “due to Netanyahu’s intention” to file an immunity request, its member Avi Nissenkorn had decided to call a Wednesday meeting of the Knesset Arrangements Committee, which he heads, to discuss forming a House Committee.

The matter is legally contentious, and led recently to mud-slinging and arguments whether the Arrangements Committee has the authority to form a House Committee during a transitional government.