Opinion

President of Israel's Supreme Court Should Resign

It’s hard to imagine Esther Hayut continuing to serve in her post. If she clings to it, the country's entire judicial system will be operating under a constant cloud

Esther Hayut and Hila Gerstel.
Moti Milrod, Olivier Fitoussi

Her term has been brief, unfortunately, but Esther Hayut needs to step down as president of the Supreme Court.

It’s hard to imagine her continuing to serve in this post. If she clings to her seat, the entire judicial system will be operating under a constant cloud. The testimony that she gave the police, after a two-and-a-half-year delay and not at her own initiative, looks more like a line of defense drawn up by a polished lawyer. Hayut and her friend, retired District Court Judge Hila Gerstl, did not make a criminal complaint, and might have prevented its reoccurrence at another juncture. This of course requires examination, but there is no disputing their transgression from a moral and public standpoint.

Gerstl was offered a bribe, the implications of which involve the total corruption of the judicial system. Offered such a deal, there is one and only one place that this should be reported immediately, and that’s to the police. Gerstl was also a public servant at the time, in a sensitive judicial post. And after her retirement from the bench, she allowed herself to sit as a mediator in a libel complaint by the prime minister’s wife, Sara Netanyahu, against journalist Ben Caspit. In a settlement, Caspit agreed to pay damages and attorney’s fees.

The matter of the bribe allegedly involves an offer made through an intermediary by former Netanyahu family spokesman Nir Hefetz to have Gerstl appointed attorney general. The alleged quid pro quo was that she see to it that a criminal investigation against Sara Netanyahu over alleged financial irregularities at the Prime Minister’s Residence was dropped. Gerstl never went to the police, instead bringing the matter up to Hayut in a social chat. In her own testimony to police this week, Hayut claimed that the “details were rather vague.” Clearing up the uncertainties is the job of the police.

Following the incident, the two judges sat in silence, seeing someone else, Avichai Mendelblit, get the job as attorney general, and how he has conducted himself. Didn’t they understand the obvious? After all, the offer to Gerstl wasn’t tailored just for her. She and Hayut could have concluded that others might also have been made the same offer.

There is a complete presumption of innocence when it comes to Mendelblit, and no aspersions should be cast on him unless proven otherwise. But now, with all of the sensitivities involved, the police must thoroughly investigate the process leading up to Mendelblit’s appointment. In 2015, Nir Hefetz handled the public selection process for the position of attorney general. There has to be an investigation into whose interests he was representing, and whether the candidates were judged by the same standard. Stated simply, was the alleged offer to Gerstl also made to other candidates? Writing in Haaretz, journalist Dan Margalit also recounted an exploratory meeting that Hefetz initiated with Margalit himself and with the successful candidate, Mendelblit, who had been Netanyahu’s cabinet secretary.

At the beginning of the selection process, nine names were put forward, which were then narrowed down to three, including Gerstl and Mendelblit, with the latter always considered the leading contender. On the selection committee, then-Supreme Court President Asher Grunis found himself in the minority in arguing that Mendelblit had “an inherent conflict of interest.” Ultimately, however, Mendelblit’s name was the only candidate submitted to Justice Minister Ayelet Shaked.

So here’s a summary of Mendelblit’s conduct since in the Netanyahu investigations. He dragged out the investigation of alleged irregularities at the prime minister’s residences and let it languish; shrank police recommendations from four cases into a single, also shrunken indictment; and refused to explain to the public why the other cases were closed.

Then there was his insistence on holding a hearing for Sara Netanyahu himself; his refusal to allow the police to carry out concurrent, separate questioning of the prime minister and his wife in the investigation of the luxury gifts given to the couple; the unexplained delay in initiating the investigation of the prime minister’s conversations with Yedioth Ahronoth publisher Arnon Mozes, even though tapes of the conversations - supplied by Netanyahu aide Ari Harow, who turned state’s evidence - had been in the prosecutors’ possession for many months.

And then there was the early and conclusive statement that in the investigation of the sale of German submarines to Israel, there was no suspicion at all of criminal conduct, and when a criminal investigation was begun, there came the additional clarification that Benjamin Netanyahu was not a suspect in the case, and no testimony was taken from the prime minister. 

There was a delay of more than two years in opening an investigation into what is now known as Case 4000, involving allegations of improprieties involving the telecommunications firm Bezeq and its Walla news website, despite investigative reporting by Gidi Weitz in Haaretz, a state comptroller’s report and an investigation by the Israel Securities Authority. Then came the failure to declare the prime minister a suspect in the case after the arrest of his friend, Bezeq controlling shareholder Shaul Elovitch, and associates of the prime minister, Nir Hefetz and former Communications Ministry director-general Shlomo Filber.

Granted that at this point everything is circumstantial evidence of sorts, but has Esther Hayut been able to sleep at night?