ISRAEL AT WAR - DAY 141

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AnalysisNo expert on criminal law, but 'a serious, competent lawyer'

Approved Monday, relatively unknown AG will take office amid falling trust

Baharav-Miara has justice minister’s backing, 30 years’ experience in Tel Aviv District Attorney’s Office, but she’ll replace Mandelblit with law enforcement under heavy scrutiny

Carrie Keller-Lynn

Carrie Keller-Lynn is a former political and legal correspondent for The Times of Israel

Gali Baharav-Miara. (Courtesy)
Gali Baharav-Miara. (Courtesy)

The cabinet voted on Monday to approve Gali Baharav-Miara over two other search committee-approved candidates to become Israel’s next attorney general.

Baharav-Miara will be the first female attorney general in the state’s history. She will also become the top legal official days after a survey showed public faith in the police and the attorney general at a nadir, and amid spiking confusion and outrage over alleged illicit police use of spy software against criminal suspects, including persons of interest in the trial of former prime minister Benjamin Netanyahu, and ordinary civilians.

Former attorney general Avichai Mandelblit stepped down upon completion of his six-year term on January 31, and State Attorney Amit Aisman has been temporarily filling the role.

While she has succeeded in substantial roles, most notably representing the state in civil litigation for the Tel Aviv District Attorney’s office, Baharav-Miara is relatively unknown for the immensely powerful position she is set to inherit.

The selection process, which recommended for ministerial approval three potential appointees led by Baharav-Miara, has also elicited criticism by analysts and watchdogs. Hebrew media reports have claimed that because Justice Minister Gideon Sa’ar had made clear publicly that Baharav-Miara was his preferred choice, two members of the selection committee chose to back her over deputy attorney general for constitutional affairs Raz Nizri in order to avoid complications. Nizri, who had been considered a front-runner for the post, did not make it to the final three choices presented to the government last week, leading him to resign from the Justice Ministry.

Israel’s attorney general role broadly encompasses serving as legal counsel for the government and public sector institutions, managing the state prosecutor’s office, and supervising legislative preparation and drafting.

Attorney General Avichai Mandelblit speaks at a ceremony at the Justice Ministry in Jerusalem marking his departure after six years in the role, February 1, 2022 (Youtube screenshot)

These broad mandates have at times led to potential conflicts of interest, such as when the attorney general is criminally prosecuting the same government ministers whose offices the attorney general advises. Sa’ar has expressed his intention to split the attorney general role, a move that Mandelblit had opposed, but that Baharav-Miara is reportedly amenable toward.

A source close to the issue told The Times of Israel that all candidates proposed to the search committee knew they would be expected to split the role should Sa’ar proceed with the reform.

Who is Gali Baharav-Miara?

Baharav-Miara is currently an attorney with the Tel Aviv law firm of Tadmor Levy & Co. Prior to joining the private sector in 2016, she spent almost 30 years in public service, focused on civil proceedings in the Tel Aviv District Attorney’s Office.

She rose to lead that office as district attorney for civil affairs during the eight years from 2007 to 2015. Prior to that, Baharav-Miara headed the office’s administrative affairs department from 2001 to 2006, representing the state in issues such as government tenders and contracts.

Despite sharing nomenclature, the term district attorney is used more broadly in Israel — where it signifies an attorney who represents the state’s interest in any type of matter — than in the United States, where it is a criminal prosecutor.

Both Prime Minister Naftali Bennett and Justice Minister Sa’ar expressed support for Baharav-Miara on January 31. In a statement, Sa’ar said that she had the strongest courtroom experience of the search committee’s candidates, and that she “argued more cases and wrote more summaries than any other candidate who appeared before the committee.”

New Hope party leader and Justice Minister Gideon Sa’ar speaks at the Knesset on November 8, 2021. (Olivier Fitoussi/Flash90)

Baharav-Miara’s experience also precedes her in “legal circles,” according to law professor Yuval Shany, a senior fellow at the Israeli Institute for Democracy.

“She has a reputation for being a very serious, competent lawyer and manager,” said Shany, who doesn’t know her personally. “She has the reputation of running a tight ship.”

In addition to substantive expertise, the attorney general role demands managerial prowess. There, Baharav-Miara comes with “significant managerial experience,” said Shany.

While running civil affairs for the Tel Aviv District Attorney’s Office, Baharav-Miara was known for maintaining what Shany called “industrial silence.”

“Industrial silence… means the place is running smoothly without major disruptions, without any major scandals. Everyone is busy and doing their work,” he said.

“People appear to be generally pleased with her style of leadership and with the professional guidance she gave.”

But really, who is she?

Two of the main criticisms circling around Baharav-Miara’s candidacy turn on knowns and unknowns.

Simply put, very little is publicly known about her, notably including her position on the key issue of whether or how she might negotiate a plea deal to end former prime minister Netanyahu’s ongoing trial on graft charges — a deal that her predecessor and the defendant seemed at times in recent weeks to be close to finalizing. Mandelblit did sign a series of final-weeks plea deals with politicians, including ex-ministers Yaakov Litzman and Aryeh Deri, that have generated immense controversy.

“We don’t know her,” said legal scholar Aharon Garber, senior fellow at the Kohelet Policy Forum. “And it’s such a powerful position, so that’s concerning.”

While she has deep experience in civil law, some critics are concerned that her criminal law background is minimal.

According to Shany, however, Baharav-Miara’s inexperience in criminal matters may be surmountable, based on the resumes of past candidates and the potential future division of the attorney general role into two,

“It’s actually quite hard to find a candidate that ticks all the boxes in the sense that they have a complete mastery of all the different branches of law which the job requires overseeing,” he said. “Miara is an expert in civil law and in administrative law. She’s not considered an expert in criminal law or in constitutional law, to which some of her critics have alluded. But of course, most past attorneys general also did not master everything… they had their field of specialization.”

Aharon Barak, a former attorney general and later Supreme Court president, is among past attorneys general who had weak criminal law backgrounds before confirmation.

Former Supreme Court president Aharon Barak (Miriam Alster/FLASH90

Sa’ar’s intention to split the attorney general role into two would presumably cleave criminal prosecution from the current job description. While far from a certainty, should he succeed in doing that, concerns about the dearth of Baharav-Miara’s criminal experience would be less pressing.

Although much speculation surrounds the borders of a potential future role division, Shany thinks it’s likely that the attorney general would still maintain a managerial role over the State Prosecutor’s Office should it take over criminal prosecution, but not weigh in substantively.

“The main proposal that is currently on the table is to [remove] the attorney general from criminal cases… and to channel these cases exclusively to the state attorney,” Shany said. “[With criminal cases], I think the attorney general would remain in charge of the administration of the State Prosecutor’s Office, at some level…And he or she would designate policy, but would not make specific decisions on specific cases.”

“I think the focus [of the planned reform of the attorney general’s role] is very much about criminal cases involving senior politicians, where there have been concerns, especially in the last few years, about the ability of the attorney general to advise the government while [simultaneously] prosecuting a good number of ministers, including the prime minister.”

Search committee or ‘mumbo jumbo’?

Separate from questions about Baharav-Miara’s background, analysts and good governance organizations have raised concerns about the search committee process that produced her as the leading candidate.

The Movement for Quality Government on Sunday sent a letter to government members to request that the search committee process be investigated, as the committee submitted its three candidate recommendations without providing supporting justification.

“Since the [search committee’s] recommendations were passed to the government without specifically [providing] opinions on each candidates’ skills, suitability to the role, experience in the field, and reasons for why they would be suited to lead as the attorney general, the committee isn’t fulfilling its role faithfully, but rather impairing the government’s ability to make a reasonable decision based on appropriate factual infrastructure,” read a statement sent by the organization.

The attorney general is a bureaucratic, not political, role and the current two-tiered process for nominating the attorney general was designed to shield it from politicking. First, a search committee meets to recommend and vet candidates. The justice minister can also recommend candidates in this process. Candidates need to be supported by four out of the committee’s five members to proceed, and up to three candidates receiving four votes can be passed to the government. Upon receiving the committee recommendations, the cabinet votes to approve a new attorney general from the list.

Reports have circulated that Nizri was knocked out of the final running to ease the path for Baharav-Miara. Two committee members, New Hope MK Zvi Hauser and former justice minister Dan Meridor, voted against Nizri, preventing him from making the final three. Meridor has denied that any kind of tactical voting took place, saying committee members voted for candidates, not against them.

Deputy Attorney General Raz Nizri in Jerusalem on February 6, 2020 (Olivier Fitoussi/Flash90)

“I’ll share the explanation that Hauser and Meridor gave inside and outside the committee,” said legal analyst Baruch Kra, speaking on 103FM radio last Monday. “They know that Miara is Sa’ar’s candidate for the post, and as soon as the government rejects Raz Nizri – who is in the middle of a term and works with government ministers frequently – there would be a crisis of confidence, so it would be better if the committee didn’t pass him to the government at all… If Baharav-Miara was going to be selected regardless, why are we doing all this mumbo jumbo [of a committee]?”

Nizri announced his resignation last week, after learning that he was not among the final candidates for attorney general.

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