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Gantz's Sinful Deal With Netanyahu Makes Clash With High Court Inevitable

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A man protesting in front of Benny Gantz's home in Rosh Ha'ayin, March 2020
A man protesting in front of Benny Gantz's home in Rosh Ha'ayin, March 2020 Credit: Tomer Applebaum

Benny Gantz may have declared that he was entering a government with Prime Minister Benjamin Netanyahu to preserve the rule of law and democracy, but in fact the coalition agreement he has signed with the prime minister, defendant No. 1 in three different criminal cases, sold out both those values. It’s doubtful whether there has been an agreement so tainted with deep and inherent corruption in Israel’s history.

Gantz is boasting that the justice portfolio has been taken from Amir Ohana and given to Avi Nissenkorn of Kahol Lavan, but anyone who’s read the agreement carefully understands that the new justice minister will at most be able to say a few words at the ministry’s pre-holiday toast or grab an meaningless photo-op during a meeting with the Supreme Court president. Holding the justice portfolio is meaningless when Kahol Lavan agreed to let the party controlled by a criminal suspect have equal says (essentially veto rights) in the appointment of the two most senior officials in law enforcement – the state prosecutor and the attorney general.

The big loser in this deal is the senior law enforcement official, Attorney General Avichai Mendelblit. One of the first clauses of the agreement looks like it was tailored for Acting State Prosecutor Dan Eldad, a darling of the outgoing justice minister. The clause states that during the first six months of the emergency government, there will be no new senior appointments that require cabinet approval (other than the directors general of government ministries) and that the tenure of all the senior officials will be “extended for the period stated.”

This means that Eldad will remain in his position even though Mendelblit has zero confidence in him and he is considered a pawn and a Trojan horse of Netanyahu, in the premier’s ongoing effort to crush the legitimacy of the law enforcement system. Mendelblit, who was military advocate general – the military’s chief prosecutor – under both Gantz and Gabi Ashkenazi, could be justified in feeling that his two commanders have betrayed him and the system he heads.

After the government’s emergency status expires, both parties agreed to set up a team with an equal number of members to draw up rules for appointing senior officials who must be approved by the cabinet. This clause, though couched in neutral language, is aimed at giving Netanyahu, through his representatives on this team, influence over choosing the next state prosecutor and attorney general. It’s also a hint to prosecutors who might want to contend for these positions to think twice.

During Netanyahu’s first term as prime minister, he was questioned as a suspect for the first time. He was suspected of working to appoint Roni Bar-On as attorney general, even though he knew that the man who was putting all his political clout behind the appointment was Shas Chairman Arye Dery, who was seeking to avoid being tried for bribery. The investigation against Netanyahu was closed for lack of evidence.

Following the Bar-On affair, Netanyahu appointed former Supreme Court President Meir Shamgar to head a committee to draw conclusions from the incident. Shamgar recommended that the appointment of the attorney general (later to be extended to the state prosecutor) should begin with a search committee, to put some distance between politicians and these sensitive appointments. It was decided, for example, that the attorney general should head the committee that chooses the state prosecutor, such that he would be the dominant figure in making the appointment.

The new joint Kahol Lavan-Likud team shows that what has been is not necessarily what will be. The fact that Gantz didn’t fight to protect the principles laid down by Shamgar and left them open for future discussion with Netanyahu’s representatives makes it very clear how hollow his speeches about his deep commitment to protect the rule of law were.

On top of that, Gantz gave Netanyahu another gift. He agreed that the opposition member of the Judicial Appointments Committee won’t be a member of the Knesset opposition at all; it would be that man for all seasons, Zvi Hauser.

This is the same Zvi Hauser who in the past committed not to sit in a government presided over by a criminal defendant; the same Hauser for whom Netanyahu felt a mixture of revulsion and contempt when Hauser was cabinet secretary, after Hauser informed the attorney general of sexual misconduct allegations against Netanyahu’s then-bureau chief, Natan Eshel. Yet Hauser has suddenly become the prime minister’s favorite.

It’s difficult to understand what real reasons led Gantz and Ashkenazi to push for a bloated and wasteful cabinet that will enable an indicted prime minister, through his emissaries, to continue to influence which prosecutors and judges he faces. But one thing is clear. This agreement was born in sin to such a blatant extent that a clash between the new government and the High Court of Justice is inevitable.