Battle over next state attorney and rule of law continues - analysis
Nothing is for sure, but some of these compromises – even if some of the parties involved might have good intentions – could lead to major long-term harm.
By YONAH JEREMY BOBUpdated: DECEMBER 20, 2020 19:09Attorney-General Avichai Mandelblit faces a decision that not only will determine his career, but also the trajectory of the state; General (Ret.) Gabi Ashkenazi, former IDF Chief of General Staff and Chairman Of The Board of the Rashi Foundation at the 7th Annual JPost Conference in NY(photo credit: MARC ISRAEL SELLEM)
It was unclear whether the Likud and Blue and White parties would reach a compromise to avoid elections at press time and further, it was unclear what that compromise might be.But elections or not, the fact that Blue and White has seriously considered one set of compromise proposals regarding appointing the state attorney (now), the attorney-general (in 2022) and Supreme Court justices (in April and ongoing) shows that the country is at a crossroads regarding the rule of law.Nothing is for sure, but some of these compromises – even if some of the parties involved might have good intentions – could lead to major long-term harm.The compromises being discussed in the media include: 1) nixing Amit Aisman as the next state attorney in favor of one of five other finalist candidates interviewed by a professional selection commission; 2) changing the power to appoint the attorney-general from professionals to politicians; 3) giving the Likud veto power over appointing Supreme Court justices even if it does not control the Justice Ministry.Of the three, the last piece might be the least problematic since the Supreme Court justices and other non-political representatives would still need to sign off on any appointee.So the Likud would have a veto, but so would apolitical officials and the sides would presumably need to negotiate to arrive at moderate candidates and trade-offs.Nixing Aisman in favor of possibly Tel Aviv District Court Judge Dr. Michal Agmon-Gonen at first glance does not sound so bad, but could have more perverse consequences.Agmon-Gonen is a respected judge and would not have gotten to where she is otherwise.But she has openly clashed with the Supreme Court which has consistently opposed her rising above her current status.Enter the Dan Eldad paradigm.
Until he became acting state attorney for three months from February to May, Eldad was respected within the country’s prosecutorial apparatus for his work as Jerusalem Economic Crimes Division Director.However, Eldad was considered a second or third-string choice for state attorney with 10-20 officials within the prosecution hierarchy being more senior and considered more talented than him.Just as important – and maybe the main reason then-acting justice minister Amir Ohana wanted Eldad in the position – was that he knew Eldad was bitter toward many of his peers for his having been passed over for various promotions.Elad had a long career as a product of the system, until then. During his short stint, he made several legally problematic decisions, which suggested that he was more interested in settling scores than in defending the rule of law.None of this is to say that the rest of the prosecution does not make errors – they do.It also does not take away from the presumption of innocence to which Prime Minister Benjamin Netanyahu is entitled or that the prosecution must and does probe centrist and left-wing politicians (former prime minister Ehud Olmert is just one of many).But it suggests that even a candidate with the right credentials can do significant damage to the rule of law if they are brought in by politicians over the objection of the professional level and if they harbor personal bitterness toward their colleagues.No one in the Likud has suggested that Aisman is not qualified or among the most talented prosecutors in the country.IT IS clear that the reason that they do not want him is because they want a candidate who is more removed from the prosecution’s professional level and, presumably, who therefore might be more pliant to politicians’ leanings.If someone like Agmon-Gonen is picked in these circumstances, it would also thwart a long game that Attorney-General Avichai Mandelblit has been playing.The state attorney position is effectively Mandelblit’s main deputy and the crown jewel for him to be able to run the state prosecution.Mandelblit has looked the other way when attacked by a variety of Netanyahu supporters but has fought tooth and nail – including before the Supreme Court – to make sure he gets to pick his own state attorney.In order to advance this goal, he also helped push current Public Security Minister Amir Ohana to select a police chief.Part of Mandelblit’s strategy has been that if the Likud got to pick their candidate for police chief, then he and Blue and White would get to pick Aisman as state attorney.The background of all of this is that Netanyahu is not supposed to be impacting who is state attorney or attorney-general while he has his impending public corruption trial set to start in February.Vetoing Aisman at this stage would make it clear how empty the idea is of keeping Netanyahu out of appointing people who could later decide his fate (such as at a later plea bargain stage).One only needs to look at the multiple attorneys-general who were fired in the last four years because they were viewed as insufficiently loyal to US President Donald Trump (as opposed to due to inadequate substantive performance on their part) to see what can happen when politicians pick that role.Incidentally, the whole reason that professionals have picked the attorney-general in Israel in recent decades is because of exactly that kind of problematic political influence with appointing the attorney-general during the Bar-On Affair of 1997.Even if Netanyahu is innocent, standard legal principles dictate that he has a conflict of interest and should not be nixing top law enforcement candidates until he has cleared his name.The question is whether any of this really matters to the Likud and Blue and White politicians deciding the country’s fate.Or, does it all come down to a simple question of how and when who sits in the prime minister’s chair will rotate.
