Instead of seeking immunity, could Netanyahu just fire the attorney general?

Law allows for axing the AG in case of substantial, ongoing differences of opinion, but PM doesn’t have much time, or justification, to pick such a fight

Jacob Magid

Jacob Magid is The Times of Israel's US correspondent based in New York

Prime Minister Benjamin Netanyahu (left) and Attorney General Avichai Mandelblit at a July 2015 cabinet meeting, when Mandelblit was serving as cabinet secretary. (Emil Salman/Pool)
Prime Minister Benjamin Netanyahu (left) and Attorney General Avichai Mandelblit at a July 2015 cabinet meeting, when Mandelblit was serving as cabinet secretary. (Emil Salman/Pool)

Could Prime Minister Benjamin Netanyahu fire the attorney general who is set to indict him pending a hearing set for October?

It may sound unlikely, and even an insult to the politicians in power, but some legal analysts are beginning to speculate that it could be the premier’s next move, now that failed coalition negotiations have complicated, if not doomed, his party’s efforts to pass laws that would grant him immunity from prosecution and prevent the Supreme Court from vetoing that immunity.

Netanyahu is facing pending charges of fraud and breach of trust in three cases, and bribery in one of them. He has denied any wrongdoing and claims the corruption accusations are a political witch hunt aimed at forcing him from office. With minimal time to pass immunity legislation after the September 17 elections — which fall three months before Attorney General Avichai Mandelblit’s office has indicated that it wants to present its decision on whether to indict — the prime minister is widely expected to explore other options to avoid prosecution. (A spokesman for Netanyahu did not respond to requests for comment on this.)

One such option would be to fire Mandelblit. Only the attorney general — who is appointed to a six-year term by a vote of government ministers, after non-binding vetting by a committee of judges —  is authorized to sign off on an indictment against the prime minister. And there is no ready-made substitute unless the government appoints an acting AG.

Removing Mandelblit, who was appointed in 2016, would allow the current cabinet — which includes three other ministers who may require immunity from prosecution — to handpick a successor who better suits them. That substitute would then be able to reassess, and possibly tone down or dismiss altogether, the allegations against the prime minister.

Has it been done before?

Before ruling out the possibility on the grounds of its brazenness, it’s worth noting that it does have precedent. In 1986, Shimon Peres’s government axed attorney general Yitzhak Zamir after the latter insisted on pushing forward with an investigation into the conduct of the Shin Bet security service in the so-called Bus 300 Affair. That investigation found that the agency’s director at the time, Avraham Shalom, had ordered two of his agents to execute a pair of bound Palestinian terrorists captured following their failed hijacking of an intercity bus carrying 41 Israelis. Shalom and other senior security officials then attempted to cover up the executions by claiming the captured terrorists had actually been killed earlier, during the raid itself.

Former Shin Bet director Avraham Shalom on Jan 27, 2011. (Yossi Zamir/Flash90)

The day before learning of the Bus 300 Affair, Zamir had notified the public of his intention to resign after seven years as attorney general. Despite his subsequent backtracking and insistence on remaining in the position to see the investigation through, Peres’s government used Zamir’s initial announcement against him, forcing him out in mid-1986 and replacing him with the little-known Yosef Harish. The latter went on to grant pardons to Shalom, who had agreed to resign, and the other Shin Bet agents involved.

While the rules for hiring and firing an attorney general have since changed dramatically, the Bus 300 Affair was not the reason that the new criteria now exist.

For those, Netanyahu has himself, at least partially, to thank.

Bar-On for Hebron

During his first term as prime minister in 1997, Netanyahu’s government appointed Likud activist Roni Bar-On to serve as attorney general. The pick sparked immediate uproar from the opposition, which lamented the political nature of the assignment, taking particular issue with then-justice minister Tzachi Hanegbi’s insistence that the Supreme Court president at the time, Aharon Barak, had given the green light to the appointment in private consultations despite opposing it publicly.

Labor MK Ophir Pines petitioned the court to block the nomination, but that ended up being unnecessary: Bar-On resigned just 48 hours after taking the job.

Ten days later, public television reported that during a meeting with Shas chairman Aryeh Deri prior to his appointment, Bar-On had promised the ultra-Orthodox MK, who was dogged by corruption suspicions at the time, that he would be able to secure a plea bargain allowing him to remain in politics. Deri subsequently pressured Netanyahu to appoint Bar-On, presenting his installation as a condition for Shas supporting the Hebron Protocols, which the prime minister signed with PLO chairman Yasser Arafat, relinquishing control over parts of the West Bank city.

The State Prosecutor’s Office subsequently ordered the opening of an investigation into Bar-On’s appointment and Netanyahu became Israel’s first sitting prime minister to be probed on suspicion of having carried out a criminal offense. Police ultimately recommended that he be indicted for breach of trust along with Deri, Hanegbi, and Avigdor Liberman, who was the director of the Prime Minister’s Office at the time.

Then Kadima MK Roni Bar-on attends a meeting of the Foreign Affairs and Security Committee at the Knesset on March 3, 2011. (Kobi Gideon/Flash90)

Bar-On’s successor, Elyakim Rubinstein, went on to close the cases against Netanyahu, Hanegbi and Liberman, determining that there was no evidence that they knew about Deri’s meeting with Bar-On.

Deri was later convicted of corruption — though not in the Bar-On affair — and served nearly two years in prison.

As a result of the fiasco, Hanegbi ordered the establishment of a special public committee led by former Supreme Court president Meir Shamgar that would specify the criteria required for an individual to be appointed attorney general and give any other recommendations on the matter it deemed necessary.

Three years later, prime minister Ehud Barak’s government adopted the findings of the Shamgar Committee in the form of an August 2000 cabinet decision.

On the question of firing an attorney general, the Shamgar Report did not strip the government of the right, but it did provide a specific series of prerequisites for taking such an action.

The cabinet decision states that the same committee of judges that vetted a government nominee for attorney general before his or her appointment must be assembled if the coalition wishes to fire the AG. Much more significantly, the only acceptable reasoning for such a dismissal — beyond the AG himself or herself committing of a crime — “are differences of opinion between the government and the attorney general, which create a situation in which effective cooperation is unattainable.”

Supreme Court Justice Menachem (Meni) Mazuz later specified that there must be  “substantial and prolonged differences of opinion.”

File: Prime Minister Benjamin Netanyahu, right, speaks with Interior Minister Aryeh Deri during a plenum session in the Knesset, January 11, 2016. (Miriam Alster/Flash90)

Okay, so can he do it?

While rather narrow, the post-Bar-On regulations still leave room in theory for Netanyahu’s government to fire Mandelblit.

Leading Israeli criminal and constitutional law expert Mordechai Kremnitzer warned that any firing interpreted to have been carried out in order to prevent criminal proceedings against Netanyahu could constitute obstruction of justice.

In a conversation with The Times of Israel, Kremnitzer, the vice president for research at the Israel Democracy Institute, on Sunday compared such a scenario to the ongoing events in the US involving Special Prosecutor Robert Mueller.

“Among the matters that [Mueller] investigated relating to obstruction of justice accusations against Trump were various steps that the president took to fire the special prosecutor — steps that in the end were not taken because the people he gave those orders to refused to carry them out. But he determined that in principle, those orders could fall under the charge of obstruction of justice,” Kremnitzer said.

As for the “substantial and prolonged differences of opinion” criterion, he argued that there was not currently a basis to the claim that such friction exists between Mandelblit and the government.

Moreover, Kremnitzer said that Netanyahu would have to wait until a permanent government is formed after the September elections in order to argue that there is such a conflict, because the interim government does not formally enjoy the confidence of the Knesset.

Professor Mordechai Kremnitzer (Kobi Gideon/Flash90)

Citing last week’s decision by the Knesset to dissolve itself, he argued that the interim government’s basis for legitimacy is so narrow that it is only authorized to do what is absolutely essential to keep the country functioning, and nothing beyond that scope until a new government is formed.

As for what ongoing disagreement with the attorney general could be used by Netanyahu as a pretext to fire him, Kremnitzer noted Mandelblit’s opposition to a February 2017 outpost legalization law.

Mandelblit refused to defend the law on the state’s behalf at the time, arguing that it violated the rights of Palestinians. The government was then forced to hire a private attorney to present its opinion before the High Court in hearings that are still ongoing.

However, cooperation between Mandelblit and the government has continued in every other case since, Kremnitzer noted, and in no other instance has the attorney general said he would not defend a piece of legislation if challenged in the courts.

Kremnitzer acknowledged that “recent months in Israeli politics have proven that nothing is impossible” — with Netanyahu’s inability to muster a majority coalition after April’s elections, the Knesset’s vote to dissolve itself last week, the resort to a second round of elections in September, and the maintenance of a transitional government since the Knesset first dispersed last December and from which Netanyahu on Sunday fired Education Minister Naftali Bennett and Justice Minister Ayelet Shaked. But the law professor predicted that a Netanyahu government would not attempt so extreme a measure as firing the attorney general just weeks before Mandelblit is slated to hand down his decision on whether to indict the prime minister.

“To me, the whole thing seems to be from the realm of wild fantasy. If there is such a step taken, it would turn Israel into a banana republic, and I think that even this government understands that,” he concluded.

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