Justice Minister Amir Ohana’s appointment of an interim state prosecutor who will hold the post until a new government is formed, hopefully, after the March 2 election, sparked a lively constitutional debate Tuesday on the limits of Ohana’s authority. The ensuing clash between the minister and Attorney General Avichai Mendelblit, who opposes Ohana’s pick and has essentially nixed it, provides Israelis fond of the genre with riveting political drama worthy of any “House of Cards” or “West Wing” episode.
In normal times, the debate and drama surrounding Ohana’s decision to ignore the senior-level candidate proposed by Mendelblit and appoint a lower-level government attorney instead may have been viewed as in-house bickering that’s gotten out of hand. In these abnormal times, with an indicted prime minister bent on escaping prosecution and seeking reelection, the Ohana-Mendelblit showdown should be seen as a decisive skirmish in Netanyahu’s all-out war against the rule of law.
Some of the opposition to Ohana’s decision to pick Central District Deputy Prosecutor Orly Ben-Ari Ginsberg as interim state prosecutor stems from the fact that Ohana is a member of a caretaker government with limited powers. His own appointment as interim justice minister was made without the usual Knesset approval for that very reason.
Ironically, were it not for the fact that Israel is in transition between an outgoing and – hopefully again – incoming government, Ohana would have been compelled to accept the recommendation of the attorney general, who normally heads the public committee charged with proposing a new state prosecutor.
Under such transitory circumstances, Ohana’s critics maintain, it is doubly imperative that Ohana refrain from making the appointment over Mendelblit’s head and against his wishes. The state prosecutor, after all, is subordinate to Mendelblit in all legal matters. The High Court of Justice, critics insist, is sure to nix the appointment, especially after Mendelblit issued a defiant verdict declaring it “beyond reasonableness” and null and void from a legal point of view.
Ohana, in fact, may be aiming for just such a result. Mendelblit’s objections, as well as any future High Court concurrence, provides Ohana with supposed proof that Israel is being run by a legal cartel intent on carrying out regime change by ousting Netanyahu. Like a blunter version of Donald Trump’s attorney general, William Barr, Ohana has declared war on Israel’s justice system over supposedly unconnected and long-held grievances, which just happens to serve the interests of Netanyahu’s campaign to delegitimize his own accusers and the criminal indictments they have presented against him.
Seen in this light, Ohana’s move is borderline criminal in and of itself: A prime minister indicted for bribery, fraud and breach of trust appoints a political hack to the Justice Ministry, who then appoints a new state prosecutor to his liking. Sounds more like a Third World kleptocracy than the only democracy in the Middle East. Or, arguably, like the United States.
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The parallels, as has been the case throughout Trump’s presidency, are uncanny. In both countries, populist leaders who are avid consumers and purveyors of cockamamie “deep state” conspiracy theories and who have railed against “the elites” and “the establishment” to whip up their base have melded their political messaging onto their personal battles against criminal investigation and prosecution.
And while Ohana, unlike Barr, is only responsible for the administration of the Justice Ministry and does not direct the criminal justice system – which answers to the attorney general on all professional matters – both were appointed by virtue of their slavish willingness to undercut the legitimacy of the institutions now in their charge to serve their political bosses.
Ohana, whose appointment in June as the first openly gay cabinet minister was hailed by liberals in the opposite camp, has emerged as one of Netanyahu’s fiercest and most blindly loyal warriors. The intensity of his attacks on what he has described as the “criminal elements” in the State Prosecutor’s Office, along with his blunt yet unfounded allegation of a conspiracy against Netanyahu, have repeatedly shocked government attorneys and lawyers. The outgoing state prosecutor, Shai Nitzan, who oversaw the investigation and indictment of Netanyahu, has received death threats – and thus a 24/7 security detail.
Until now, state attorneys and their colleagues in the various judicial districts have mostly kept mum, voicing their protests against Ohana’s incitement in discreet briefings to the media. Ironically, it’s the squabble over the appointment of an interim state prosecutor, who will be replaced, theoretically, within a few short months, that may push government lawyers to break their silence and go public with their outrage. Civil servants everywhere may bow to the will of their political superiors on matters of belief and conscience, even ones of critical importance to their country, but interfering with their internal appointments and hierarchy is a red line that cannot be crossed.
Still, Ohana’s move is far more than an administrative maneuver, an exercise in leadership or even a valid attempt to assert the power of appointed politicians over their government-sanctioned legal advisers. Rather, the appointment is part of the overall struggle for Israel’s soul and will be exploited, by both sides, in advance of the March 2 election.
That’s when Israelis will be called to render their – hopefully – final verdict, not only for or against Netanyahu but also for or against his lackeys, who are aiding and abetting his attempted prison break while citing lofty principles of good governance and the proper separation of powers. That’s when the drama will reach its climax or anti-climax, whatever the case will be.