Netanyahu’s Twilight Spurred Attorney General to Back Ban on Criminal Defendants Serving as PM

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Then-Prime Minister Benjamin Netanyahu flanked by members of his Likud Party before entering the district court in Jerusalem on the first day of his trial, last year.
Then-Prime Minister Benjamin Netanyahu flanked by members of his Likud Party before entering the district court in Jerusalem on the first day of his trial, last year.Credit: Yonatan Sindel/Flash90

Attorney General Avichai Mendelblit was convinced to throw his weight behind a bill to ban a criminal defendant from serving as prime minister by the actions of Benjamin Netanyahu in the dying hours of his premiership, which he believed would spell "the end of Israeli democracy."

Mendelblit believes Netanyahu’s actions and conduct as a prime minister under indictment proved the need for such changes in the law, as Netanyahu jeopardized the stability of the system in Israel. The attorney general has also said he will defend the bill before the High Court of Justice if passed by the Knesset and then appealed.

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Since entering office last June, Justice Minister Gideon Sa’ar has been leading efforts to amend the Basic Law: The Government so that the president could not assign a person under criminal indictment to form a government. Professional ranks in Sa’ar’s office have held a series of discussions on the matter, the most recent one coming earlier this week. A memorandum was published on Tuesday and Sa’ar intends to advance it after approval of the budget, which is expected early next month.

In Mendelblit’s view, the proposed amendments are not aimed directly at Netanyahu, who now heads the opposition, since they will take effect only with the next Knesset, but the need for them is “reflected in past experiences” and has come into sharper focus due to Netanyahu’s actions as premier. Over the past months the attorney general has argued in Justice Ministry discussions that during his last two years in office there was a conflict of interest between Netanyahu’s duties and his position as a criminal defendant, which began in January 2020. As a criminal suspect prior to that, he abused his office to change his legal predicament and harm the law enforcement system, Mendelblit has asserted.

In the past the attorney general was of the opinion that if Netanyahu gained the necessary political power, he would take government action meant to annul the legal proceedings against him. Mendelblit anticipated that in order to achieve his ambitions, Netanyahu would not hesitate to mortally weaken the powers of the Supreme Court. In coalition talks held from 2019 to 2021, Netanyahu suggested legislative changes that would have benefited him, but he failed to anchor them in coalition agreements and act upon them. “If this scenario had come to pass, it would have been the end of Israeli democracy,” Mendelblitt said in more than one meeting.

Last year the attorney general discussed declaring Netanyahu incapacitated to serve as premier due to the use he made of his position for personal gain, but did not advance the motion.

The proposed bill is considered fairly complex, and Mendelblit’s staff and the Counsel and Legislation Department at the Justice Ministry are considering several of its challenges. One question to be answered in the memorandum, which was the subject of a professional debate, was the nature of criminal charges that would preclude a Knesset member from serving as prime minister. While some ministry officials tend towards including only offenses whose maximum penalty exceeds three years in prison, others favor lowering the bar so an indictment for fraud or breach of trust, which several elected officials have been tried for in recent years, would also trigger the ban.

Another dispute regards the timing of the indictment and the triggering of the ban: What would happen, for instance, to a candidate who was indicted in the midst of an election campaign, after the deadline to file candidate lists had passed?

Another reason for Mendelblit’s support for the legislation is the call by the High Court “to regulate for the future, through appropriate legislation, the issue regarding appointment of a Knesset member indicted for serious, shameful crimes to form a government.” In May 2020 the justices unanimously rejected appeals against the formation of the Netanyahu-Gantz government, after Mendelblit opposed them as well. But they wrote that it is not sufficient for an MK to be legally eligible to form a government, and that the principle of “eligibility is one thing, sound judgment is another” should apply.

Despite support from legal experts, the bill is expected to run into political difficulties. The move’s main opponent is Interior Minister Ayelet Shaked, who is blocking its advancement. Her party, Yamina, led by Prime Minister Naftali Bennett, has yet to form a clear position on the subject, nor has Bennett taken an unambiguous stance. The assumption in the political arena is that Bennett has not yet decided whether to support the bill. United Arab List chairman Mansour Abbas has voiced some reservations about the law, saying earlier this month that he is opposed to “personal” legislation. The Joint List, in the opposition, is considering supporting the law.

The following response was made on behalf of Mendelblit: “The attorney general has informed the Supreme Court that the indictment against Netanyahu does not preclude him from being appointed to form the government. This position was accepted by the Supreme Court, which nonetheless pointed out ‘the need to settle the issue, in order to express and anchor in law the public and moral principles it raises.’

“Recently the justice minister has been considering an amendment to the Basic Law, and the attorney general is examining and addressing the provisions suggested for inclusion in the Basic Law. The amendment follows the precedent of legislation dealing with eligibility for public office, and seeks to adjust the prevailing legal standard to the office of the prime minister as well, just as the Knesset passed, several years ago, an amendment regarding the eligibility of a mayor to serve under indictment, and also following the law regarding the eligibility of government ministers to serve under indictment.”

A statement from Likud said that "Gideon Sa'ar, who is clawing at the electoral threshold from below in all the polls, is proposing an anti-democratic law à la Iran that seeks to disqualify the person who is getting 35 seats in the polls and has the support of millions of citizens as their representative for heading the government. Embarrassing."

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