Ronen Bar’s bombshell affidavit puts the ball squarely in attorney general’s court
Gali Baharav-Miara will now have to determine whether the Shin Bet chief’s allegations about Netanyahu’s conduct necessitate a new criminal investigation of the prime minister
Yuval Yoaz is the legal analyst at Zman Israel, The Times of Israel's sister Hebrew website. He practices law, specializing in public, constitutional and media laws, and is the founder of Israel Democracy Guard. He is a partner in the law office of Karniel & Co Yoaz-Bareket-Jonas.
The former attorneys general who gathered Monday evening for a scheduled conference at Reichman University had planned to discuss the government’s initiative to oust Attorney General Gali Baharav-Miara. But they could hardly ignore the shocking content of Shin Bet chief Ronen Bar’s affidavit, which had been submitted to the High Court of Justice earlier that day.
“If what the Shin Bet chief says is true,” said Menachem (Meni) Mazuz, a former attorney general and retired Supreme Court justice, “and we have no reason to doubt it, this is a demand to carry out blatantly illegal acts and a crossing of a clear red line. Civil protest is not subversion – it is a fundamental democratic right. Demanding that the Shin Bet handle it is forbidden.”
Avichai Mandelblit, Baharav-Miara’s immediate predecessor, added: “The moment someone tells the Shin Bet to obey the prime minister instead of the High Court – that’s game over. Once that line of defense is broken, there is no democracy.”
Bar’s affidavit was submitted as part of the legal proceedings in eight petitions against the government’s decision to dismiss him. The judges must determine whether the dismissal was legally valid, or whether it was motivated by extraneous considerations or tainted by a conflict of interest on Prime Minister Benjamin Netanyahu’s part, in which case it must be overturned.
But beyond the legality of the dismissal, questions are also being raised about the legality of Netanyahu’s actions as exposed in Bar’s affidavit.
Within hours of its submission and publication, demands landed on Baharav-Miara’s desk to open a new criminal investigation against the prime minister, over his alleged attempts to harness the power of the Shin Bet for his personal and political benefit.
The claim is that Netanyahu’s repeated demands that Bar issue a security opinion that would allow the prime minister to avoid or delay testifying as a defendant in his criminal trial constitute the criminal offense of obstruction of justice, as well as fraud and breach of trust.
One request to the attorney general stated: “A criminal defendant who applies extreme, repeated pressure on a senior official like the Shin Bet chief — in order to elicit an order or ostensibly professional opinion that would prevent his testimony at the time set by the court — is obstructing justice as defined under law.”
The fact that Bar rejected these alleged demands does not negate the offense; it was committed by the very act of making the demands.
Fraud and breach of trust are broad offenses in the realm of public sector corruption. They pertain to public officials – including elected officials – who deviate from their duty to act with loyalty to the state and to use their powers solely in service of the public interest.
According to the numerous appeals to the attorney general, the criminal offense in Netanyahu’s case stems from his serious conflict of interest: on the one hand, he oversees the Shin Bet; on the other, he allegedly sought to exploit the security service for his private benefit as a criminal defendant.
And it wasn’t just Netanyahu’s effort to avoid testimony that may amount to fraud and breach of trust. His alleged demands that the Shin Bet use its capabilities against protest leaders opposing the government’s judicial overhaul, that it monitor “protest funders,” and especially that Bar obey the prime minister rather than the court in the event of a constitutional crisis – all of these may constitute separate offenses of fraud and breach of trust.
A different legal angle
MK Naama Lazimi (Labor) presented a different legal approach, focusing her appeal to Baharav-Miara on the Shin Bet Law itself. Section 4(c) of the law states that “the service shall act in a statesmanlike manner,” and that “no mission shall be imposed on the service for the advancement of partisan political interests.”
While the section is not penal in nature, Lazimi argues that Netanyahu’s repeated violations of it constitute the offense of fraud and breach of trust.
The Zulat Institute wrote to the attorney general that in addition to obstruction of justice and breach of trust, Netanyahu is also suspected of the offense of abuse of power.
“It is not appropriate to view Bar’s affidavit solely in the context of the High Court proceedings concerning the legality of his dismissal,” the institute wrote, “while ignoring the serious criminal implications it raises. Such disregard could damage Israeli democracy and the rule of law no less than the actions attributed to the prime minister himself.”
Baharav-Miara will now need to examine whether the details revealed in Bar’s affidavit amount to reasonable suspicion of criminal conduct that would justify opening a criminal investigation. Beyond the evidentiary question, the attorney general will also have to weigh the public interest in pursuing such an investigation.
The Supreme Court has ruled that, in general, there is always a public interest in investigating and prosecuting public officials. The only relevant question is evidentiary. But in reality, there are exceptions to that rule.
Another question that must be addressed – either publicly or behind closed doors – is whether any of Bar’s claims in the affidavit were new to the attorney general. It is widely assumed that Baharav-Miara was aware of at least some of Netanyahu’s conduct described in the affidavit.
If so, it begs the question: Why did she not consider opening a criminal investigation in real time, and instead wait until the claims were introduced in an affidavit submitted to the High Court?
Netanyahu’s defense attorneys could argue that if, upon initial examination, the attorney general did not find sufficient grounds to open an investigation, there is no reason for that conclusion to change merely because Bar chose to make those claims in a sworn statement.
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