After Netanyahu Indictment, Israel's Attorney General Prepares for His Next Battle

As state prosecutor's term draws to a close, tension rises around the appointment of his acting replacement - as naming a permanent one is not permitted under Israel's transitional government

From left: Justice Minister Ohana, Attorney General Mendelblit and State Prosecutor Shai Nitzan.
Moti Milrod

After announcing that he was indicting Prime Minister Benjamin Netanyahu for bribery and then having to fend off attacks on the law enforcement system, Attorney General Avichai Mendelblit is preparing for his next battle: Choosing a replacement for State Prosecutor Shai Nitzan, who retires in less than two weeks.

When there is an elected government, the state prosecutor is chosen by a search committee appointed by the justice minister and headed by the attorney general. Generally the political echelons allow the attorney general to appoint a person whose abilities he believes in and with whom he will be able to cooperate. That’s how then-Attorney General Menahem Mazuz chose Eran Shendar and after him Moshe Lador, and that’s how former Attorney General Yehuda Weinstein chose Nitzan.

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But the current government is a transitional government, whose ability to make senior appointments is limited, and Mendelblit has said the law does not permit Justice Minister Amir Ohana to set up a search committee.

So Ohana has given up attempting to appoint the next prosecutor and is seeking to choose an acting replacement for Nitzan, whose term ends December 15. The candidate must be a state employee and the appointment requires the approval of the civil service commissioner.

If Mendelblit thinks that Ohana’s choice is not worthy of the post, he is expected to object vehemently and under those circumstances someone is likely to petition the High Court of Justice against Ohana’s choice. Mendelblit has already made it clear in private conversations that he will not defend such an appointment in court. “I will not facilitate this,” he told his colleagues. He fears that given the indictments against Netanyahu, the current government is seeking to undermine law enforcement, rather than strengthen it.

Until an elected government is formed, Mendelblit would like to see his deputy for criminal affairs, Shlomo Lemberger, replace Nitzan. Another candidate Mendelblit would reportedly support is Liat Ben Ari, who was responsible for handling the cases against Netanyahu. Not surprisingly, Ben Ari does not appear on Ohana’s short list of candidates. It’s possible that Mendelblit might make a surprising suggestion for Nitzan’s replacement, such as Military Advocate General Sharon Afek, who is considered close to Mendelblit.

Deputy Attorney General Shlomo Lemberger at the Knesset, 2017.
אמיל סלמן

During Nitzan’s six years in the post, there was heavy criticism of some of his decisions, among them the lenient plea agreement signed with Yoshiyahu Pinto and the closing of the sensitive Umm al-Hiran case without determining that Yakub Abu al-Kiyan had not tried to commit a terror attack when he was shot dead by police.

In the cases against Netanyahu, Nitzan took a tough line; he thought the prime minister should have been charged with bribery also in Case 1000, the cigars-and-champagne case, and Case 2000, the Yedioth Ahronoth case, not just in Case 4000, the Bezeq-Walla case.

During the next few weeks, Mendelblit is also expected to decide on whether to file charges (subject to a hearing) against Interior Minister Arye Dery. The investigation against Dery, who is suspected of fraud and money laundering, was launched four years ago and the decision-making phase has been unreasonably long.