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Only a Surprise Can Save Netanyahu From an Indictment

It now seems possible that Avichai Mendelblit will be first attorney general to indict the prime minister who appointed him.

Amir Oren
Amir Oren
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Israeli Attorney General Avichai Mendelblit, in November 2016.
Israeli Attorney General Avichai Mendelblit, in November 2016.Credit: Lior Mizrahi
Amir Oren
Amir Oren

Israeli prime ministers have been investigated over the last two decades, and one was even tried, convicted and jailed. But no attorney general has yet indicted a prime minister who had appointed him. Will Avichai Mendelblit be the one that sets a precedent? As the new year begins, this seems like a very probable scenario.

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Mendelblit tried doing everything he could so as not to reach the point of having Netanyahu questioned as a suspect. If, after all his contortions and twists, the AG was forced into ordering an investigation that he was hoping to shelve, the default option from here on is an indictment.

The trial has already taken place and only the motions have to be gone through. Only an extreme turn of events, astonishing and unexpected, can prevent the filing of charges against Netanyahu.

The manner in which the prime minister is handled by the police is by law something that is left to the discretion of the attorney general. Former AG Yehuda Weinstein broadened the law’s interpretation to include anything and everything associated with the prime minister and his assets. He used the original argument that the prime minister’s environment is also subject to the rules of the state – call it the sanctity of the Balfour Street compound.

When Sara Netanyahu pocketed bottle-deposit money, Weinstein arranged some secret deal with David Shimron, the family’s lawyer, to return the money. When the family dog bit someone, a “royal animal protection society” stepped in to assist.

Netanyahu appointed a military man as his adviser and a senior secret service official as the commissioner of police. Both of them come from hierarchical organizations that worship the principle of “allowing the government to rule,” to cite the words of police chief Roni Alsheikh.

For his part, Alsheikh deems the investigation of a prime minister as almost tantamount to subversion. However, the functioning of the government can be hurt by the conduct of the person at its helm, and there are limits to what even the most "user-friendly" AG can do for his benefactor.

An unreasonable order to close a case can turn around and bite the person giving such an order, in the form of an appeal to the High Court of Justice, or even in charges of breach of trust or of payback for having obtained an appointment.

Mendelblit assumed his post while carrying a three-fold burden. First of all, he is emotionally connected to someone who was his direct superior while he was cabinet secretary, without whom he would not have been appointed as either the secretary or attorney general. Secondly, he still harbors resentment and a sense of being wronged after he was questioned in the aftermath of the Harpaz affair (in which there were suspicions of a forged letter relating to the appointment of an Israel Defense Forces chief of staff).

A third burden is Mendelblit's military past, in which he played a support role, not a combat one, bearing the rank of general – a rank not earned with blood and sweat as in the case of combat officers. As the military advocate general he was a staff officer in the service of the chief of staff. It was hard for him to internalize what he knew rationally: that the AG is not the advocate general of the civilian chief of staff, namely the prime minister. His multiple roles put him in a situation in which he served as an adviser on discussions concerning the outpost of Amona on one day, and as prosecutor of his boss the next day.

The solution for Mendelblit’s predicament came from a custom used by the Ottoman rulers of this country: First, one builds a roof. Once a structure is covered it can’t be demolished and the walls can always be built later.

The case against Netanyahu is almost complete, missing only the suspect’s version of events. The latter could bring the whole structure down only if it springs some sort of surprise and reveals that the whole edifice stands on shifting sands, a swamp or a minefield. Until then, in the AG’s assessment, an investigation is equivalent to an indictment, which is tantamount to a conviction. Only the judge’s signature is missing.

Such a road isn’t undertaken without knowledge of the final destination.

It is useless to look for a smoking gun. Netanyahu himself is the gun, or at least the smoking cigar. He and his wife are recidivists who have learned nothing from previous predicaments, ones which ended with a forgiving attitude but not in the clearing of their names. They haven’t been cured. It’s stronger than they are.

On a personal level, Netanyahu will hide behind claims of innocence. Publicly, his investigation should render him unfit to govern. The rest of the investigation should be conducted quickly and continuously. The government should appoint an interim head and remove him for a few weeks. Call it a vacation, which he needs almost as much as Israel needs one from him.

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