Attorney General Avichai Mendelblit has thought for months that Prime Minister Benjamin Netanyahu’s continuance in power endangers the country.
The attorney general is convinced that Netanyahu, especially now that he’s been indicted, will do everything in his power to destroy the law enforcement and judicial systems. He’s convinced that the prime minister is planning to evade justice, and that if the political system makes it possible, he’ll carry out this plan.
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Mendelblit’s suspicion of Netanyahu and his cronies is so great that over the past several months, he has told several subordinates that he talks on the phone as if he were being wiretapped and travels from place to place as if he were being followed. “Close the blinds,” he recently ordered his office staff during a meeting with someone.
“He explained that he’s simply afraid of being filmed from the building next door,” the person he met with said.
These aren’t just the necessary precautions of someone who is at war with the most powerful person in the country. Mendelblit genuinely believes that the government has marked him – along with former State Prosecutor Shai Nitzan and the prosecutor in charge of Netanyahu’s cases, Liat Ben Ari – as a prime target for public destruction and is devoting all necessary means to this end.
But on Thursday, despite these feelings, Mendelblit ruled that there’s no legal barrier to Netanyahu forming the next government, despite the significant legal problems it would create. He has used this tactic of granting approval even while noting serious problems in previous cases where other, bolder attorneys general would have taken the next step and vetoed the move in question.
Mendelblit presumably spent the past year hoping the public would ditch Netanyahu through the ballot box and spare him the need to submit a legal opinion on this issue. But once he was forced to decide, his position was fairly predictable.
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Anyone who knows him well had no doubts that he wouldn’t rock the boat. Unlike Aharon Barak and Menachem Mazuz, who were considered activist attorneys general, Mendelblit espouses a passive, restrained approach that lets the government carry out its policies even if they clash with constitutional values. The green light he gave the nation-state law exemplifies this.
As the nation’s top prosecutor, he would similarly have preferred to walk on tiptoe. Several people have heard him say in recent years that had he been attorney general when the cases against former Prime Minister Ehud Olmert arose, he wouldn’t have deposed Morris Talansky, the American Jewish businessman who gave Olmert cash-stuffed envelopes. It was this deposition that forced Olmert to resign.
It’s evidently no accident that the prosecution decided not to depose Sheldon Adelson, a key witness in one of Netanyahu’s cases, despite his worsening health. This decision, like Mendelblit’s prolonged deliberation over the recordings of Netanyahu’s talks with Yedioth Ahronoth publisher Arnon Mozes in this case – which involved a never consummated deal under which Yedioth would give Netanyahu favorable coverage in exchange for Netanyahu taking steps to curb the Adelson-owned daily Israel Hayom – and his similarly lengthy deliberations on the case of illicit gifts to Netanyahu by businessmen, stemmed from this same deeply rooted conservatism.
In 2015, shortly before Mendelblit was appointed attorney general, a well-known politician met privately with Netanyahu. “I’m curious to know why Mendelblit is your nominee,” said this man, who knew Netanyahu was very suspicious of other people. “After all, you’ve identified Gabi Ashkenazi as a future political rival, and he and Mendelblit are very close.”
Netanyahu replied, “he solves problems for me in Judea and Samaria,” the Hebrew name for the West Bank. He was referring to times when Mendelblit, then the cabinet secretary, had done what the Justice Ministry hadn’t by solving legal problems related to the status of settlements and outposts. That led several Justice Ministry officials to dub him a “hilltop youth,” referring to a group of the most extremist settlers.
Had he not become entangled in Netanyahu’s investigations and ended up indicting him, Mendelblit would have been the right-wing government’s darling and the prime minister’s closest confidant. In that case, any minister who attacked the attorney general would have gotten a resounding slap that very day, Amir Ohana would have been named justice minister only in his wildest dreams and the state would have saved a lot of money on Mendelblit’s bodyguards.
In his brief to the High Court of Justice on Thursday, Mendelblit mentioned the serious charges against Netanyahu and the inherent conflict of interests of a criminal defendant who is also the prime minister, in charge of appointing police investigators, prosecutors and judges.
Nevertheless, he advocated deference to the Knesset, which stipulated in the Basic Law on Government that a prime minister could continue serving until he was convicted of an offense involving moral turpitude and had exhausted all appeals. This law even dictated which court would hear cases against an indicted prime minister. Mendelblit also cited minutes of the Knesset Constitution Committee to show that Knesset members knew exactly what they were doing when they enacted those provisions.
Mendelblit repeatedly stressed that his key consideration was “respecting the will of the voters.” But in the High Court’s precedent-setting ruling barring Rafael Pinchasi from serving as deputy minister because of the indictment against him, the justices said “the voters’ decision cannot take precedence over the law’s decision, nor can it replace it.”
The High Court’s upcoming decision on Netanyahu’s continuance in office will depend on how it balances these two considerations – the voters’ decision and that of the law. The attorney general has given greater weight to the former not only with regard to Netanyahu’s trial, but also in approving the rotten coalition agreement between Netanyahu’s Likud party and Benny Gantz’s Kahol Lavan.
There have been previous cases in which Mendlblit approved vile government actions on the assumption that they would survive a High Court challenge but proved wrong. One example was Netanyahu’s decision to split up the public broadcasting corporation to bolster his control over it.
It’s hard to predict whether the court will adopt Mendelblit’s stance this time or voice a more resounding moral position than this weak whisper. But one thing is clear: Even if the justices fall in line with Mendelblit and pave the way to a fifth Netanyahu government, the attorney general won’t receive even a moment of grace from the prime minister and his cronies. He’ll retain his position as the government’s enemy number one, and as the prime minister’s trial on charges of bribery, fraud and breach of trust moves ahead, the destructive battles between the two men will only escalate.