Coalition opens new front in battle against Israeli attorney general with bill to enable investigations of her office

Two members of Knesset (MKs) from the Religious Zionism party recently introduced a bill that would allow investigations into the attorney general (AG) and the state prosecutor for alleged wrongdoing.

The move comes amid significant disagreements between coalition ministers and Attorney General Gali Baharav-Miara, who has become a polarizing figure in the current Israeli political discourse.

Simcha Rothman (MK) and Zvi Sukkot (MK) introduced the bill in the Knesset, claiming there is a loophole in the system that currently exempts the Attorney General's office and the State Prosecutor from prosecution.

“The Attorney General and the State Prosecutor are at the head of the law enforcement and prosecution system in Israel," explained the two Knesset members.

"Although there are several provisions regarding the opening of investigations and the filing of indictments against senior officeholders such as the prime minister, a minister, a judge, and others, there is a gap when it comes to initiating such proceedings against the attorney general and the state prosecutor," Rothman and Sukkot said when announcing the proposed legislation. 

While the bill claims to address a gap in the legal system, it is impossible to separate its introduction from the ongoing tension between Baharav-Miara and the coalition government led by Prime Minister Benjamin Netanyahu. Conflicts between the AG and government ministers have become a near-weekly occurrence.

If passed into law, the proposed legislation would allow the state prosecutor and the AG to be investigated by order of the justice minister, through an independent investigation. 

It seems clear that the purpose of submitting the bill at this time is to increase pressure on these top justice officials amid severe disagreements between the AG and government ministers. 

How exactly did Baharav-Miara become such a polarizing figure?

Part of the conflict stems from the unique nature of the attorney general in the Israeli political system compared to other democratic countries. The AG holds two different responsibilities simultaneously – that of legal advisor to the government – but whose advice is legally binding – as well as the chief prosecutor, even for government figures accused of crimes or wrongdoing. In most democracies, these functions are divided between two separate offices.

Since the current government came to power, Baharav-Miara has refused on several occasions to defend the government's position in petitions to the Supreme Court. Thus, the government has been forced to seek external legal counsel when it became evident she would not support a proposed action or bill. 

To make matters worse, for many in the coalition, Baharav-Miara is also the legal figure in charge of the investigations and the current trial of Prime Minister Benjamin Netanyahu in the various cases he has been charged.

In January 2022, Baharav-Miara was appointed by then-Justice Minister Gideon Sa'ar to replace Avichai Mandelbit.

Mandelbit had been appointed by Netanyahu to be attorney general after previously serving as his cabinet secretary. Due to the close connection and history between Netanyahu and Mandelbit, many were shocked when the latter followed up on the police recommendation to indict the prime minister on corruption charges on Nov. 21, 2019.

Netanyahu has often referred to the corruption cases against him as a "witch-hunt" and in the eyes of many of his supporters, the very fact that Baharav-Miara continues the case, as she is required to do by law, makes her an enemy worthy of distrust. She is seen by them as the representation of the "deep state" which seeks to overthrow Netanyahu at whatever cost.

Many in the current coalition lean more towards a populist interpretation of democracy, in which the parties with the largest representation should be allowed to govern as they see fit, including changing laws they disagree with. For this reason, the coalition planned a series of judicial reforms, to tame what they see as an "activist judiciary."

In the eyes of the coalition, the push to get rid of the current attorney general is simply a part of that attempt to reform a system that it believes is entrenched against its interests.

On Tuesday, those attempts continued as Communications Minister Shlomo Karhi sent a letter to Cabinet Secretary Yossi Fuchs, calling for the dismissal of Baharav-Miara due to ongoing disagreements with the coalition government.

The letter was signed by 13 coalition ministers but fell short of the minimum 17 ministers that Karhi had hoped for to trigger an immediate discussion among cabinet members about the AG’s removal.

As a result of the conflict-of-interest agreement set up by Mandelbit in 2020, Netanyahu did not sign Karhi’s letter calling for the AG’s dismissal, nor has he publicly supported it.

Under the terms of his conflict-of-interest agreement, which prohibits him from making senior law enforcement and judicial appointments – or getting involved in legislative matters that may affect his ongoing trial on corruption charges – any attempt by Netanyahu to take action against the AG could immediately result in him being declared unfit to carry out his duties. 

It is clear, however, that several of his recent statements about the lack of investigations into the leaking of cabinet or committee discussions have been directed at Baharav-Miara. The prime minister also benefits from coalition members' calls to investigate or replace the AG, as it raises public doubt about the motives behind her office's actions against coalition members. 

In his letter to Cabinet Secretary Fuchs, Karhi said that Baharav-Miara “knowingly thwarts government policy for political reasons, while fabricating unfounded legal motives and in extreme deviation from the boundaries of her legal mandate.” 

Several coalition ministers refused to sign the letter, however, citing existing legal methods for removing an attorney general.

Economy Minister Nir Barkat has instead called for legislation to divide the roles of the attorney general and the state prosecutor into two separate offices, similar to the system used in many democratic countries, including the United States.

Several Israeli commentators have also noted that under current law, the justice minister should initiate any effort to remove the attorney general and must provide evidence justifying such action to the selection committee responsible for choosing a new attorney general. After the committee determines that there are grounds for dismissal, the government can decide on the matter or even act against the committee's decision. However, this could lead to the High Court of Justice invalidating the government’s decision. 

For the coalition and its supporters, this situation exemplifies what they see as the court's excessive power and influence in overriding government actions and legislation.

Critics of the bill and the government ministers' effort to oust Baharav-Miara warned that the court and the AG are the only safeguards stopping Israel from becoming an “illiberal democracy” where the majority has no restrictions, even when their policy would harm minority communities. 

Update:

As the article was going to publication, an attempt by coalition MKs to impeach Attorney General Gali Baharav-Miara in a direct vote was stymied when the opposition mustered enough votes to defeat the movement, 41-40.