High Court Slams Attorney General's Directive: 'Is the Blood of Public Figures Any Different?'

Avichai Mendelblit was faced with harsh criticism after he issued 'cautious’ guidelines for investigating public figures

FILE Photo: Attorney General Avichai Mendelblit in Jerusalem, March 2018.
Olivier Fitoussi

The High Court of Justice criticized Attorney General Avichai Mendelblit on Monday for a directive mandating extra precautions before opening criminal investigations against politicians.

Under this directive issued by Mendelblit, police need to conduct a preliminary inquiry before opening criminal investigations into public figures such as ministers or Knesset members, “due to public sensitivity and the possible ramifications on the system where he holds office.”

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Two and a half years ago, MK Miki Rosenthal (Zionist Union) petitioned the court against an earlier version of this directive, saying it was discriminatory. The court finally heard the petition on Monday, and Justice David Mintz seemed to agree.

“Is the blood of public figures any different – any redder or bluer?” Mintz asked. “What’s the difference between a public figure and an ordinary man?”

Justice Neal Hendel wanted to know exactly which public figures merit the extra procedural caution and what criteria are used to decide who qualifies. But state attorney Yonatan Berman declined to give a specific answer, saying only that the directive applies in any case where an investigation “might harm the system in which he [the suspect] holds office.”

Berman also had no clear answer to Mintz’s question as to whether the evidentiary threshold needed to open a criminal investigation would be different for public figures than it was for ordinary people. The standard in all cases, Berman said, is whether there’s a “reasonable suspicion” that a crime was committed, but he acknowledged that this standard is vague. “There are meetings and a decision is made,” he explained.

“That’s the problem,” Mintz replied. “Why is extra caution needed for a public figure? This is a good definition; we don’t know what does or doesn’t constitute a reasonable suspicion.”

Rosenthal’s attorney, Yuval Yoaz, charged that Mendelblit’s directive provided no clear criteria and was meant solely to prevent investigations of public figures. The preliminary inquiry is “a process reserved exclusively for the privileged,” he said, so “it’s clear we have different procedures for different people. We’re moving away from equality before the law.”

Avigdor Feldman, another member of Rosenthal’s legal team, argued that the preliminary inquiry hurts both sides. He said the suspect would have fewer legal protections than in a standard criminal investigation, while police would be unable to use tools such as wiretaps, and might therefore wrongly conclude that there was no case “because they didn’t take the necessary investigative measures.”

In the directive, which was first reported by Haaretz on Sunday, Mendelblit said the preliminary inquiry isn’t only meant to protect public figures, but also to enable inquiries into information that wouldn’t justify a full criminal investigation, such as second-hand information, for the sake of ensuring that public figures are above suspicion.