Mendelblit Considered Taking Leave From Cabinet Job Before Assuming AG Post

Cabinet looks set to approve his nomination, but Mendelblit may face legal challenge in High Court of Justice to succeed Yehuda Weinstein.

Avichai Mendelblit (right) consults with Prime Minister Benjamin Netanyahu during a weekly cabinet meeting, September 2015.
Ohad Zwigenberg (Pool)

Avichai Mendelblit on Monday decided against taking leave from his current job as cabinet secretary in advance of his expected appointment as Israel’s next attorney general.

On Sunday, a search committee named him as its sole candidate for attorney general, and the cabinet is expected to approve the appointment at its regular meeting next Sunday. Earlier yesterday, therefore, Mendelblit had been leaning toward taking a leave of absence until after that cabinet session.

But after meeting with Prime Minister Benjamin Netanyahu last night, he changed his mind, apparently out of fear that such a leave could be interpreted as acknowledging a need for a cooling-off period between the two jobs.

Mendelblit, a former military advocate general, has been cabinet secretary since May 2013. He will assume the attorney general position on February 1.

Though he was originally Netanyahu’s preferred candidate for the job, it turns out that at one point, Netanyahu almost switched his support to Dr. Guy Rothkopf, a former Justice Ministry director general and close associate of former Justice Minister Yaakov Neeman. Should Mendelblit’s appointment fail to survive a High Court of Justice challenge, both Netanyahu and Justice Minister Ayelet Shaked would likely throw their weight behind Rothkopf.

Opponents of Mendelblit’s appointment – who include the search committee’s chairman, former Supreme Court President Asher Grunis – are concerned over the propriety of a cabinet secretary closely involved with political issues transitioning so quickly to the post of attorney general. A High Court challenge on those grounds is thus far from inconceivable.

The other likely pretext for a court challenge is Mendelblit’s involvement in the so-called Harpaz affair. That case involved a forged document aimed at influencing the selection of an Israel Defense Forces chief of staff to succeed Gabi Ashkenazi. 

Outgoing Attorney General Yehuda Weinstein ordered an investigation into the failure of Mendelblit – the military advocate general at the time – to immediately disclose that Ashkenazi was in possession of the forged document. While he later closed that investigation, he refrained from stating explicitly that the case was closed due to lack of guilt, publicly voiced discomfort with Mendelblit’s behavior and remains one of Mendelblit’s biggest detractors.

But lawyers advising Mendelblit say that since neither Weinstein nor Grunis saw reason to disqualify him as the next attorney general over the Harpaz affair, the High Court of Justice also wouldn’t view it as a reason to bar him. And State Prosecutor Shai Nitzan, who was personally involved in approving the decision to question Mendelblit under caution in the Harpaz case, has now changed his mind and is prepared to defend the appointment in court.

With regard to the cooling-off period, no such requirement is specified by law, and it hasn’t previously been viewed as necessary. Given the absence of any precedent for such a demand, Mendelblit’s supporters say the chances of the High Court disqualifying him are no greater than 5 to 10 percent.

Moreover, there are precedents that would seem to cut the other way: Several previous attorneys general who were heavily involved in political issues – Haim Cohn, Meir Shamgar, Aharon Barak and Elyakim Rubinstein – were subsequently appointed as Supreme Court justices without a waiting period. Barak, for instance, participated in the diplomatic negotiations with Egypt that produced the Israeli-Egyptian peace treaty in 1979.

The search committee itself said in a letter explaining its decision that it didn’t discuss Mendelbit’s role in the Harpaz case at all, because it didn’t consider itself authorized to do so. The panel “isn’t a court and has no capability to make decisions on factual issues” that would require hearing witnesses and examining evidence, it wrote. 

As for whether a cooling-off period is needed, it said, the committee received several conflicting legal opinions on this issue. But a majority ultimately adopted the view that a cooling-off period is unnecessary, since the cabinet secretary is a professional post rather than a political one, and Mendelblit could simply recuse himself if conflicts of interest arise on specific issues.

Despite the unlikelihood of the High Court disqualifying Mendeblit as attorney general, his supporters say Netanyahu was close to giving up on the appointment over the weekend, when the selection committee was deadlocked in its support for Mendelblit and two other candidates – Rothkopf and Knesset legal adviser Eyal Yinon.

Each candidate had support from only three of the five committee members, and Netanyahu feared that should the cabinet choose Mendelblit under those circumstances, the appointment would have more trouble surviving a High Court challenge. He was therefore preparing to switch his support to Rothkopf.

On Saturday night, however, Mendelblit’s supporters – led by an academic expert who admires his expertise in both security issues and running a large bureaucracy (the military prosecution) – managed to secure a fourth vote on the committee, making him its sole candidate. The fourth vote apparently came from Prof. Gabriela Shalev, who, in addition to her legal and academic background, once served as Israel’s ambassador to the United Nations.

Sharon Pulwer contributed to this report.