I Can’t Order Netanyahu to Step Down for Time Being, Attorney General Tells High Court

Netael Bandel
Netael Bandel
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Prime Minister Benjamin Netanyahu at the Knesset, yesterday.
Prime Minister Benjamin Netanyahu at the Knesset, yesterday. Credit: Emil Salman
Netael Bandel
Netael Bandel

Attorney General Avichai Mendelblit has written the High Court of Justice that he objects to instructing Prime Minister Netanyahu to recuse himself at this point in time, in response to a petition calling on the court to oblige him to ask Netanyahu to step down due to the indictments against him.

“The relevant circumstances do not at this time provide a basis for a judicial determination that Netanyahu is incapable of fulfilling his role,” wrote Mendelblit. Netanyahu had earlier responded to the petition by arguing that the attorney general cannot be given such far-reaching authority which would allow him to remove an incumbent prime minister.

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Mendelblit wrote that legal precedent over the years has emphasized the importance of maintaining moral purity among elected officials, and that the indictment filed against Netanyahu for offenses he allegedly committed while serving as prime minister is extremely serious and raises significant difficulties on various levels.

The attorney general referred to the prime minister's harsh remarks against the law enforcement system and said these have the potential to undermine public confidence in the rule of law. Mendelblit also mentioned that in recent months the Israeli government led by Netanyahu has refrained from holding discussions on various appointments of senior officials in the Justice Ministry, adding that even if there is not necessarily a causal link between the two, this has negative implications for public trust.

At the same time, the attorney general wrote that in light of the current situation, as well as the conflict-of-interest arrangement he formulated for Netanyahu, he believes that there is no reason for a judicial determination to rule on his imprisonment as prime minister. In response to the claim that Netanyahu is physically incapcitated due to the trials that take place three times a week, Mendelblit said that "the need for the prime minister's presence in the courtroom in the Jerusalem District Court to conduct his trial does not in itself necessarily support a "physical imprisonment" claim and that "it is incumbent on the prime minister to find a way to integrate his commitments, as needed."

Earlier, in response to the petition, Netanyahu had said the attorney general was not an elected official, and claimed “there was no underlying logic or possibility of granting him such authority. Such authority was not stipulated in any law, and the legislators chose to not give him the authority to determine the identity of a prime minister, stating that an indicted Knesset member is not precluded from serving as prime minister.”

The Movement for Quality Government in Israel said in its petition that Netanyahu’s trial makes him "physically, functionally and essentially" absent. “He is unable to fulfill his duties while attending court,” it argued, adding that he is busy with his legal troubles even when he’s in court. The petitioners wanted the court to instruct Mendelblit to oblige the government to appoint permanent ministers, including a minister of justice.

Attorney General Avichai Mendelblit, last week.Credit: Emil Salman

The Movement for Quality Government further claimed that the restrictions on Netanyahu as determined in the conflict-of-interest document formulated by Mendelblit, including a prohibition on dealing with appointments in law enforcement agencies, would seriously hamper his ability to function. Netanyahu is acting counter to the public interest, argues the petition, by not allowing the appointment of a justice minister or a state prosecutor, as well as blocking the approval of a state budget.

Netanyahu’s attorney argued that the issue was not whether he should be removed from office because someone was dissatisfied with Netanyahu’s political decisions. The issue was about the limits to the attorney general’s authority, he claimed. This is a contentious issue, since the law speaks of “objective recusal,” a situation in which it is clear that a prime minister is incapable of performing his duties. During the investigations against former prime minister Ehud Olmert, the issue of “functional recusal” came up, with a dispute over whether he could or could not perform his duties.

Although the attorney general has no legal authority to functionally recuse a prime minister, over the years several High Court justices have written that this could be possible under some circumstances. The issue arose in relation to a petition against Olmert, when the court ruled that this was possible when criminal investigations were involved. Last month, Justice Hanan Melcer wrote about Netanyahu’s (as-yet-unsigned) conflict-of-interest agreement that the attorney general does have the authority to order Netanyahu to step down.

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