Defying Israel's Attorney General, Justice Minister Taps New State Prosecutor

Attorney General Mendelblit says the appointment of Orly Ben-Ari Ginsberg is extremely unreasonable, and that there would be legal impediment to approving it

Justice Minister Amir Ohana and newly-appointed acting State Prosecutor Orly Ginsberg Ben-Ari.

Justice Minister Amir Ohana appointed Tuesday Central District Deputy Prosecutor Orly Ben-Ari Ginsberg as acting state prosecutor.

The move comes in defiance of Attorney General Avichai Mendelblit, who announced that he favors the deputy state prosecutor for criminal affairs, Shlomo Lemberger, for acting state prosecutor.

"My legal position is that under the circumstances, the appointment of Attorney Ben-Ari Ginsberg to the office of state prosecutor exceeds, in an extreme way, the scope of what is reasonable, and therefore, there is a legal impediment to its approval," Mendelblit wrote to Ohana.

At the beginning of December, Haaretz reported that Mendelblit would likely vehemently object if he thinks Ohana’s choice is not worthy of the post, possibly reaching the High Court of Justice if a court petition is filed against the appointment. He reportedly fears that given the corruption charges against Prime Minister Benjamin Netanyahu, the current government is seeking to undermine law enforcement.

Justice Minister Amir Ohana (L) and Attorney General Avichai Mendelblit attending a conference in Tel Aviv, November 2019.
Moti Milrod

Ohana responded to Mendelblit's opposition in an interview with Army Radio, saying "Mendelblit's statement that the appointment is extremely unreasonable is in itself extremely unreasonable ... I did not bring a person who is a stranger to the system, nor did I bring a person who knows Netanyahu. As far as I know, she has never met him."

Many senior legal officials have praised Ben-Ari Ginsberg’s work and achievements in recent years, Ohana wrote in the press release announcing her appointment. He added that he's convinced that her qualifications and character, along with her vast legal knowledge she has attained over the years and her management skills make her the most appropriate candidate for acting state prosecutor. “I have no doubt that Orli will act to preserve everything appropriate of preserving, and contribute to strengthening public trust in this important system,” Ohana wrote. 

Ben-Ari Ginsberg will serve in the post until a permanent successor to Shai Nitzan – whose term as the head of the State Prosecutor’s Office ended on Monday – is appointed, but her term can be extended by an additional three months if necessary.

The current interim government is not authorized to make permanent senior appointments, and therefore once a new government is formed after Israel's March 2 election, it will appoint a search committee and choose Nitzan’s permanent replacement.

Following the appointment, Civil Service Commissioner Daniel Hershkowitz wrote in a letter to Ohana that the decision to appoint Ben-Ari Ginsberg "might destabilize the proper functioning of the State Prosecutor’s Office," due to her lack of senior experience.

"I would like to emphasize that my stance at this time is that the acting state prosecutor should hail from the senior echelon of the State Prosecutor's Office, which is in line with the attorney general’s reccommendation," Hershkowitz wrote in an official letter to Ohana.

Two weeks ago, Ohana released his list of five potential candidates for the interim post. Shortly thereafter Mendelblit announced he prefers Lemberger for the job, adding that in order to guarantee that the acting state prosecutor will be able to act independently, Ohana must consult the attorney general on the matter before making the appointment. 

Mendelblit said his opinion on the appointment should have “great and significant” weight and must be followed, barring crucial circumstances.

Ohana, whose preferred candidate was Dan Eldad, the head of the economic department at the State Prosecutor’s Office had reservations about scuffling with Mendelblit over the appointment or facing a legal battle with the attorney general during an election campaign.

Ben-Ari Ginsberg began working at the Central District State Prosecutor’s Office in 1992. In January 2018, she was one of three candidates for the central district prosecutor position, but attorney Rachel Avishar was chosen for the top job instead, with Nitzan being one of the members of the committee that appointed Avishar. Ben-Ari Ginsberg also was a candidate for the position in 2012, but was not chosen then either. 

Ben-Ari Ginsberg has bachelor’s and master’s degrees in law with distinction from Tel Aviv University, and she currently teaches at the university. She also serves as the head of the security forum in the State Prosecutor’s Office, and has handled sensitive security cases, including the case of Ben Zygier, known as "Prisoner X," the former Mossad officer who committed suicide in prison in 2010.

A candidate for state prosecutor must have the same qualifications required to be appointed as a Supreme Court justice, according to a cabinet decision from 2004. The candidate must have “personal and intellectual integrity, and the highest level of professionalism and expertise in the fields of criminal law, and the areas of constitutional and administrative law, as well as the personal characteristics of legal leadership,” in addition to the administrative ability to manage the organization under their responsibility.

The only state prosecutor who was appointed to the post without first having served as district prosecutor or deputy state prosecutor was Zvi Bar Nir, who was tapped in 1962.