Along with his official consultations on Prime Minister Benjamin Netanyahu's criminal cases, Attorney General Avichai Mendelblit convened a forum of top legal scholars with whom he discussed the cases – without informing the Justice Ministry or the State Prosecutor’s Office.
The participants at the meetings, which were not held in the Attorney General’s Office, were asked to keep them confidential. The group was convened in 2019, prior to Mendelblit's decision to indict the prime minister, which was formally announced in November of that year.
“I was told Mendelblit is in a bit of a bind – he plans to go for an indictment but doesn’t sufficiently trust his people on the macro questions. I saw it as a mission to help him,” one member of the group said.
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It was Prof. Yedidya Stern of the law school at Bar-Ilan University who advised Mendelblit to assemble the group. After a round of phone calls, law professors Ruth Gavison, Ron Shapira, Menachem Mautner, Yuval Elbashan and Yuval Shany were also recruited. (Gavison died in August of this year).
Several of them said they were warned to keep the discussions secret. One reason for this was that the attorney general informed them about the decision that he was heading towards regarding the possible indictments before they were made public.
The prime minister's trial on charges of bribery, fraud and breach of trust is currently under way in Jerusalem District Court in three separate matters. Netanyahu denies any wrongdoing.
To maintain secrecy, Mendelblit's meetings were held at the Yad Hanadiv building in Jerusalem and listed in Mendelblit’s schedule as a “meeting with academics.” The members of the group did not bring computers and were asked not to record or write down anything. The only one present with a computer was Mendelblit’s bureau chief and close friend Dr. Gil Limon.
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Shapira came to only one meeting, where he informed Mendelblit that he could not take part because his wife had once represented Netanyahu. He said he believed it was a mistake to convene such a group.
Each meeting lasted three hours and at each, Mendelblit began by presenting the issues that the Justice Ministry was grappling with and asked the group to comment on them.
“He was very cautious with us,” said one member. “We were not given any written material. Everything was oral. He brought up questions from the cases and sometimes also the different opinions from the formal forums in the Justice Ministry. They were mostly macro issues. … We understood that he thinks his people at the Justice Ministry were conceptually unified in their view of the cases … and he wanted to get a point of view that he wasn’t finding there.”
In one of the three cases against the prime minister, dubbed Case 4000, Netanyahu was suspected of providing the controlling shareholder at the time of Bezeq telecommunications with regulatory concessions to Bezeq in return for favorable news coverage from Bezeq's Walla News website. The attorney general wanted the group’s views on whether it was appropriate for the prime minister to be the defendant in a test case involving a precedent-setting legal question such as whether favorable news coverage could be the subject of a bribery case.
At another meeting, the attorney general shared his deliberations over certain sections of the indictment in Case 2000, over which there was a major dispute at the Justice Ministry. That case involved allegations that Netanyahu sought to obtain favorable news coverage in the Yedioth Ahronoth daily from the newspaper's publisher, Arnon Mozes, in exchange for legislation benefiting the newspaper.
The State Prosecutor’s Office wanted to charge Netanyahu with bribery in the case, while Deputy Attorney General Raz Nizri argued that the case should be closed since it entailed intervention and criminalization of Knesset legislation. Amit Eisman of the Haifa district of the State Prosecutor's Office, who has since been nominated as the next state prosecutor, proposed filing the charge of breach of trust, as a kind of compromise. The group of academics discussed the various positions of Justice Ministry officials and what might constitute breach of trust.
Mendelblit also consulted with the academics regarding the propriety of Netanyahu’s defense being funded by his cousin Nathan Milikowsky. The group advised him to permit it, but Mendelblit did not go along with their view.
Two camps developed among the group. One, comprised of Stern and Shany, tended to take a stricter stance toward Netanyahu (although not always, on the defense financing question, for example), while Gavison and Elbashan were generally more lenient. Mautner sometimes sided with one camp and sometimes with the other.
One issue that particularly troubled Mendelblit had to do with the timing of the announcement of the indictment. He told the group that the prime minister’s lawyers had been urging him not to announce his decision during an election period. Members of the group have said that Mendelblit did not believe the timetable for the legal proceedings should be dictated by political developments, but he also did not want his decision on the charges to dramatically affect the election, so as not to be accused of interference in the election.
Mautner, Stern and Shany advised him to announce the decision as soon as it was made, without regard to political developments. Elbashan and Gavison warned that it would be seen as crude intervention in the election campaign and that a Netanyahu victory would be perceived as being in defiance of the charges and of law enforcement.
While the group was meeting, Netanyahu also invited several legal scholars to his official residence. They were told the prime minister wished to consult with them about his cases and his public activity. But they suspected he was trying to recruit them to make public statements in support for him.
Neither Netanyahu nor Mendelblit knew that some of those with whom the prime minister was consulting were also part of Mendelblit's group. The Ma’ariv daily and Kan public broadcasting both reported that, when putting together his coalition government, Netanyahu met with both Gavison and Stern, as he was considering appointing one of them as a justice minister who would have the approval of his coalition partner, the Kahol Lavan party. Haaretz has learned that they were not the only members of the group whom Netanyahu met with.
Another question the forum discussed was what to do about leaks from the police and the Justice Ministry. Taking a minority view, Mendelblit opposed investigating the matter, which led several members to make contrary statements in the media.
The public statement that caused the most heated discussion among the forum was an October 2019 Facebook post by Prof. Gavison, in which she stated, “I fear that Netanyahu has no chance of receiving a fair trial.”
Gavison wrote, “There has been too much trial by the press. Now it is very hard to end it another way. It’s a tragedy for Bibi but also not good at all for the country and society,” she wrote, referring to the prime minister by his nickname.
Members of the group have said that Mendelblit told friends he was very angry about this, although he did not express his anger at the group's subsequent meeting. Other forum members told Gavison that while they may support her view, she ought to have told Mendelblit directly before going public with it.
A few weeks later, in November 2019, Prof. Mautner wrote a piece in Haaretz, saying that “the ongoing leaks concerning the prime minister’s investigations represent a sickening peak in the transfer the decision-making power on matters of guilt and innocence from the courts to the media… I am not convinced by the attorney general’s explanations of his decision not to launch an investigation to identify the leakers.…”