Could Israeli legal system force Netanyahu to resign?

Do not envy Attorney General Avichai Mandelblit. By Dec. 18, he will have to choose between the lesser of two evils — to tell the Supreme Court that Prime Minister Benjamin Netanyahu’s political career is over, or that in his opinion a politician charged with criminal wrongdoing can continue serving as prime minister.

If he goes for the first option, State Prosecutor Shai Nitzan, who just stepped down, will have to make way for him at the top of the political right’s list of villains. And if Mandelblit decides that in the State of Israel, criminal offenses such as bribery, fraud and breach of trust should not stand in a person’s way to the prime minister’s office, he risks a resonating defeat in the country’s top court. If that happens, he may go down in the legal-ethical history of Israel and the Western world as the jurist who allowed a politician to spend the morning in the defendant’s box in court and to conduct fateful decision-making security Cabinet sessions in the evenings.

Unfortunately for Mandelblit, Justice Ofer Grosskopf, who received a petition on this issue last week, refused to let him off the hook, rejecting his claim that the issue of the accused Netanyahu’s eligibility to form Israel’s next government is theoretical at this stage. In response to a petition submitted on behalf of 67 leading figures in Israel’s high-tech industry by Attorney Dafna Holz-Lechner, Grosskopf asked Mandelblit to tell him when the issue would no longer be theoretical. Or, in other words, when the issue would require a legal ruling. The attorney general and Netanyahu were also ordered to present their position on the possibility that the top court would rule on the question of whether Netanyahu was fit to be tasked with forming the country’s next government.

The petitioners warned of the chaos that could ensue if the attorney general deems it appropriate to inform the president that he is not authorized to task a suspect under indictment with forming the next government. Under normal circumstances, if Netanyahu is considered to have the best prospects of putting together a ruling coalition after the March 2020 elections, President Reuven Rivlin would give him the nod to try his hand. “A cry would go up, and rightly so, and the tough question would be asked of why you did not clarify the legal situation with all its ramifications before Israel found itself embroiled in the maelstrom of this election campaign, with all its attendant damage,” the petitioners wrote, referring to Mandelblit.

The attorney general is paying the price of the short-sightedness (naivete?) of Israeli lawmakers, who failed to foresee the possibility that a member of the government or its head would hang on to his or her chair even after being indicted. It is hard to blame the lawmakers for failing to imagine that a ruling party would place a person charged with criminal wrongdoing at its head and that this person would enjoy significant public support.

It is not the first time such an issue has appeared on the public agenda. In 1993, Prime Minister Yitzhak Rabin refused to fire Interior Minister Aryeh Deri and Deputy Minister of Religious Affairs Rafael Pinchasi of the Shas party from his government. His decision was then challenged in a Supreme Court petition. Then-Attorney General Yosef Harish announced (in the Deri case) that he agreed with the petitioners that the minister should not be allowed to keep his job in accordance with proper norms and the fundamental principles of law and governance.

Michael Ben-Yair, whom Rabin appointed as Harish’s successor, wrote Dec. 8 on his Facebook page that the attorney general and the top court must express their views on whether, from a normative point of view, someone accused of severe public corruption is fit to rule until a court clears his name. Ben-Yair argued that this question should not be left to the public to decide at the ballot box since the election results could be influenced by misleading propaganda rife with incitement.

Ben-Yair’s position echoes the words of late Supreme Court Chief Justice Meir Shamgar, who led the lineup of justices deliberating in the petitions against Rabin over his refusal to dismiss Deri and Pinchasi. “If a man facing an indictment that accuses him of taking a bribe worth hundreds of thousands of shekels and in other ways abusing his administrative posts serves as a Cabinet minister,” Shamgar wrote in his September 1993 decision, “this will have far-reaching implications for the image of Israel's government, its good faith and respectability.”

Shamgar noted that parliamentary-political considerations could be relevant in the case (Rabin was afraid Shas would bolt his coalition government if he were to fire Deri), but when there is evidence of an alleged criminal offense by a member of government, the severity of the offense is all the more relevant. The weight of all other considerations is reduced, Shamgar ruled, the more egregious the offense.

Deri, like Netanyahu, was indicted on charges of bribery, fraud and breach of trust, which is why the precedent-setting ruling in his case is appropriate in Netanyahu’s case as well. The ruling in Deri’s case stated that as long as the minister is under such heavy suspicions, he is unfit to be in charge of the public’s money, and there is even suspicion that he could be placed in a conflict of interest. The ruling also stated that the resignation must come into effect regardless of a demand for a Knesset immunity against going to trial.

If a minister is subjected to such principles, then all the more so the chief of the Cabinet. The attorney general and the justices will be unable to ignore the precedent set by the high court under Shamgar in the cases against Deri and Pinchasi. The presumption of innocence until convicted did not help the two ministers. Both of them had to resign even before the guilty verdict. So, why should the head of the caretaker government Netanyahu benefit from the presumption of innocence and not step down?

Shamgar, considered one of Israel’s most eminent judges, was a member of the Jewish Lehi and Etzel underground movements that fought against the British in Palestine. He was never suspected of leftist or purist leanings. As Shamgar lay in state Oct. 22, 2019, Netanyahu delivered a eulogy, calling Shamgar “the pillar of fire of Israeli law,” and adding: “His unique contribution to shaping the Israeli legal system is priceless. … His firm and persistent belief in freedom of expression, individual liberty, the dignity of man, tolerance, is reflected in every ruling he has ever handed down.” As he said, “every ruling,” without exception. That includes the one that showed the door to politicians under the shadow of indictment.