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Netanyahu and the Anatomy of a Constitutional Crisis – Lawfare

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Amidst a flurry of constant political maneuvering, intense legal debate and multiple Supreme Court cases, Israel has been stuck in political and constitutional deadlock for nearly a year. For the first time in its history, Israel will hold a third parliamentary election in the span of just 12 months after the previous rounds failed to produce a viable government. And also for the first time, the Israeli prime ministers office is occupied by an individual who is facing multiple graft charges involving offenses directly related to his position but refuses to resign.

Prime Minister Benjamin Netanyahu insists on running for reelection, and he still maintains robust support within his political party, the Likud. Israeli politics have thus become inextricably entangled in his legal predicament.

Israels attorney general, Avichai Mandleblit, has found himself in the untenable role of both Netanyahus prosecutor and his advocate: Mandelblit personally authorized Netanyahus indictment after lengthy deliberations, but he has also represented the government at the Supreme Court in multiple cases stemming from that same indictment. Several of these cases have challenged Netanyahus competence to serve as prime minister, while others pertain to Netanyahus effort to secure parliamentary immunity from indictment.

So far, the attorney general has refused to articulate his position on key constitutional issues raised by the current situation, although he has determined that Netanyahu may stay on as caretaker prime minister until the elections. His silence contributes to the stalemate: These are uncharted waters, and there is little legal clarity about what Israels constitutional law requires in this situation.

Many questions need answering. One category relates to Netanyahus current effort to secure parliamentary immunity from indictment. Is Netanyahu eligible for parliamentary immunity from prosecution while he remains in office? Will he be granted parliamentary immunity as a practical and political matter? Would the Supreme Court uphold a decision by the Knesset, the Israeli parliament, to grant him immunity?

Another set of questions has to do with Netanyahus substantive competence to serve as prime minister under indictment. Can Netanyahu even run for reelection under indictment? Perhaps most consequentially, if Netanyahu secures the largest number of recommenders for prime minister in the Knesset after the March elections, may Israels president, Reuven Rivlin, assign him the mandate to form a governmentdespite Netanyahus failure to put together a governing coalition in two previous rounds, and notwithstanding the indictment? If Netanyahu succeeds in forming a government, can he be judicially removed?

In what follows I consider recent developments and the stakes involved in addressing some of these legal questions. For additional detailed analysis, in Hebrew, also see this opinion from the Israel Democracy Institute.

The Immunity Standoff

Like any other member of the Knesset, the prime minister is eligible to seek parliamentary immunity from criminal indictment. Despite flatly denying that he would seek immunity if indicted before the April 2019 elections, Netanyahu has unsurprisingly requested immunity to prevent his indictment from proceeding to court. Netanyahu is being charged with bribery, fraud and breach of trust for various actions he took as prime minister. I elaborated on the allegations in a previous post.

Under the Knesset Members Immunity, Rights and Duties Law of 1951 (as amended in 2005), Netanyahu may ask the Knesset to grant him functional immunity for the duration of his service on several potential grounds. Those grounds include the degree to which the acts constituting his alleged offenses were necessary for the fulfillment of his official duties; prosecutorial maleficence or discrimination; prior disciplinary action by the Knesset; and the possibility of substantial harm to the functioning of the Knesset, one of its committees, or the representation of the electorate. The last ground requires balancing between the benefits of blocking criminal proceedings and the public interest, meaning that the Knesset must consider the severity and nature of the offense in question.

Notably, the law also grants Knesset members absolute substantive immunity for any action in their capacity as a Knesset member performed while fulfilling [their] duty or in order to fulfill [their] duty. Substantive immunity is designed primarily to protect Knesset members speech and political action, and at least a portion of the graft charges against Netanyahu clearly do not meet the laws requirements. For example, it is hard to see how accepting lavish gifts in the form of champagne and cigars could be necessary for the fulfillment of Netanyahus role as prime minister. The same could be said about providing extensive regulatory benefits in return for favorable media coverage. The Knesset Committee, a subcommittee of the full parliament, has final authority to deny immunity under Article 13(c1) of the law. If the committee decides to grant immunity, however, the Knesset plenum must vote to approve its decision.

This is where things get complicated. Once the Knesset decides to dissolve itself, as it did in December 2019, its activities are restricted until a new Knesset is elected. For this reason, and because the current Knesset was elected in September before dissolving itself only three months later, the Knesset Committee has yet to be convened in its current Knesset. When it became evident that the majority of Knesset members supported convening the committee to consider Netanyahus immunity, Netanyahu launched a campaign to stall the proceedings. He appears to have concluded that he might not have a majority in favor of immunity. Netanyahus party pressured the speaker of the Knesset, Yuli Edelsteina Likud memberto invoke his authority in order to block the Knesset Committee from being convened.

It did not work. The Knessets legal adviser has concluded in a recent legal opinion that the speaker did not have authority to prevent the Knesset Committee from convening. The adviser determined that a majority of Knesset members may convene the Knesset Committee if they see fit and that, once convened, the committee is not barred from considering Netanyahus immunity even during the transitional period before the elections as long as the proceedings begin within a reasonable distance from election day, March 2.

In the meantime, the Likud party petitioned the Supreme Court to disqualify the Knessets legal adviser for conflict of interests (the advisers spouse works at the attorney generals office). The Supreme Court has rejected the Likuds request for an injunction against the publication of the opinion, thus allowing its publication, although the case is still pending. The Knessets Organizing Committee, chaired by a member of Benny Gantzs Blue and White partythe Likuds main contender for control of the governmentthen moved to convene the Knesset Committee. Nevertheless, contrary to the opinion, the Likud party and Netanyahus other supporters have continued to pressure the speaker to prevent the Knesset Committee from convening.

It is unwise to make political predictions in the current climate. But it appears that Netanyahu may not have the votes for immunity in the committee or the Knesset plenum. Reports have indicated that he is considering withdrawing his request for immunity if he concludes that he will lose.

Importantly, the indictment could advance to court even if Netanyahu is granted immunity. The Supreme Court has previously reviewedand annulleddecisions of the Knesset Committee pertaining to the immunity of other Knesset members (see, for example, Bishara v. Attorney General; HCJ 11298/03 Movement for Quality Government in Israel v. Knesset Committee). The court has framed immunity decisions as quasi-judicial decisions that are different from ordinary legislative work. Therefore, it has held, such decisions are reviewable under a lower s
tandard of deference.

What is more, the law has changed since these cases had been decided in a way that further weakens parliamentary immunity: The default under the previous regime was that Knesset members had immunity and the attorney general had to petition the Knesset Committee to remove it. Under current law, the default is that there is no immunity, and the Knesset Committee is allowed to grant immunity upon the request of a Knesset member, with the approval of the Knesset plenum. Only two Knesset members have petitioned the committee for immunity since the law was amended, and both requests were denied. In other words, there is reason to believe that the Supreme Court might intervene should the Knesset decide to grant Netanyahu immunityafter all, there is no presumption of immunity under current law, and this is an area where the court has intervened even when there was a presumption of parliamentary immunity.

Substantive Competence

If Netanyahu does not win immunity, Israel will face a constitutional and political Pandoras box. Under current case law, Netanyahu is not legally barred from running in the upcoming elections. There are therefore two open questions: First, can he stay on as prime minister before the elections if the indictment moves forward? As mentioned previously, the attorney general has concluded that Netanyahu can remain in office as caretaker prime minister until the elections. The second question is a trickier one: What happens if Netanyahu gets the most recommendations from Knesset members in the new Knesset after the elections?

Typically, the president assigns the mandate to form a government to whoever receives the most recommendations from Knesset members, although he has discretion in making this decision under Section 7 of Basic Law: The Government:

Could the president deny Netanyahu the mandate even if he has the greatest support among Knesset members?

The Supreme Court has thus far stayed its hand on this key issue. The court has recently dismissed without prejudice a case challenging Netanyahus competence to receive the mandate to form a government after the next elections. The court ruled that the case was not ripe for adjudication because there was no certainty that Netanyahu would in fact get the mandate to form a government after the elections. The issue, it ruled, was therefore theoretical.

At the same time, the court recognized that Israel faces an unprecedented constitutional crisis and noted that the relevant constitutional questions, in principle, are justiciable. This may signal that, if Netanyahu is assigned the mandate to form a government after the elections, the court will eventually decide whether he can serve as prime minister. The court also underlined that the president, in assigning the mandate to form a government, is allowed to factor Netanyahus criminal indictment into this decisionrejecting Netanyahu's argument that the indictment should play no role. Of course, given the seven-day clock set by the Basic Law, the court has set itself up to have to produce one of the most consequential decisions in its history in less than one week.

The courts avoidance in dismissing the case is understandable given that it is caught between a rock and a hard place. The stakes of disqualifying Netanyahuthe longest serving prime minister in Israels history, who has solidified his control over the state in the course of his 11-year reign and still enjoys substantial popular and political supportare monumental. It could result in massive political blowback against the court, which has been under sustained political attacks notwithstanding the Netanyahu saga. Therefore, the court likely prefers to have Netanyahus fate decided in the political arena. If he loses the election, the court will be spared the potentially devastating consequences of deciding the competence issue. The question is what happens in the very plausible scenario that Netanyahu wins greater support in the Knesset than his main opponent, Gantz. Disqualifying him then would be even more difficult if he secures a majority on the heels of an electoral victory.

On the merits, there are conflicting considerations at play. On the one hand, effective judicial impeachment of a sitting prime minister would be unprecedented, even though Netanyahu would technically only be a caretaker prime minister until a new government is formed. As I explained previously, there is no precedent for judicial removal of a prime minister who faces criminal charges: Previous prime ministers resigned when faced with indictments. The text of the applicable constitutional normBasic Law: The Governmentrequires automatic removal only after the prime minister is convicted and the conviction becomes final, which could take years. This is different from the arrangement that applies to other officials such as ministers and mayors, which courts have previously relied on to require their removal following indictment. As I noted before,

[T]here are ample grounds for questioning the application of [precedents] to the situation of a prime minister facing criminal charges. [Previous cases] were decided based on administrative law principles that apply to the prime minister as chief executive and to city councils as administrative authorities. The question of whether a prime minister can be removed in circumstances other than those explicitly provided for in the Basic Law implicates additional complex constitutional issues. It is one thing to hold that a city councils failure to remove a mayor who is accused of criminal wrongdoing is unreasonable as a matter of administrative law. It is a completely different thing for the Supreme Court to challenge the failure of the national legislature, the Knesset, to act, should it fail to remove the prime minister . The stakes here are particularly high because the removal of the prime minister means the resignation of the entire government.

Furthermore, the provisions of the Basic Law governing the prime ministers removal due to criminal wrongdoing seem to set the bar for removal higher than the constitutional and statutory provisions that address ministers, deputy ministers and mayors. This might serve as an additional basis for distinguishing the existing precedents in the case of the prime minister. Articles 23(b) and 27 of the Basic Law provide that a government minister or deputy minister convicted of an offense with moral turpitude would automatically be removed from office once the verdict is rendered. Unlike the prime minister, they cannot remain in office until the verdict becomes final. Article 20 of the Tenure Statute provides that a mayor would be automatically suspended if convicted with moral turpitude until the verdict becomes final. No such provision exists in the Basic Law with regard to the prime minister, which indicates that the Knesset intended to bestow a more robust constitutional protection from removal upon the prime minister.

Moreover, judicial interference in this unique context creates problems for democratic legitimacy. If the court rules that Netanyahu is incompetent to serve as prime minister due to the criminal charges against him, it would essentially recognize the unelected attorney generals power to remove a prime minister by indictment.

On the other hand, judicial approval of Netanyahus competence would send the message that pervasive corruption can be tolerated, even when it directly involves alleged abuse of the office of prime minister. Such a ruling could lead to a situation in which a prime minister faces a criminal trial while overseeing and working closely with the very institutions that participate in his prosecution. It would uphold a reality that creates a serious conflict between the prime ministers self-interest and the best interests of Israel.

It would also be in tension with previous case law that required the dismissal or resignation of officials who faced serious indictments without waiting for them to be convicted, even though the Basic Law required removal only after conviction. Under existing cas
e law, statutory removal requirements do not exhaust the circumstances in which an elected officials tenure could be terminated due to alleged criminal wrongdoing. In fact, under existing law, Netanyahu was forced to resign from the four ministerial positions he had held in addition to being prime minister. The absurdity should be evident: How can it be that Netanyahu is legally barred from serving as an ordinary minister, but not as prime minister?

Finally, Israels parliamentary system means that barring Netanyahu from receiving the mandate to form a governmentbe it by decision of the president or as a result of a subsequent Supreme Court rulingwould not necessarily abrogate the will of those who voted for the Likud party. The prime minister is not elected directly but is the member of the Knesset who succeeds in building a majority coalition. And even then, the president has discretion in granting the mandate to form a government, so a different Likud member may be able to form a government.

Focusing on the presidents decision would arguably circumvent the problemdiscussed in the excerpt aboveof overriding the Knessets decision not to remove a prime minister already serving with its confidence. The presidents exercise of his discretion in allocating the mandate to form a government could serve as a hook for judicial review. As the Supreme Court just made clear, it would be lawful for the president to consider Netanyahus indictment (and possibly his previous failures to form a government) in assigning the mandate even if Netanyahu pulls together a majority coalition after the elections.

For these reasons, while the courts wait-and-see approach may be prudent, it is also problematic. There is an argument to be made that if the court is to disqualify Netanyahu at some point, it is better to do so before the elections. First, the public has a right to know whether the head of the party they might be voting for, who personifies and tightly controls that party, is even eligible to continue as prime minister. Another round of elections that ends in deadlock because of questions and litigation about the eligibility of Netanyahu to serve as prime minister would further undermine an already fragile and nearly dysfunctional Israeli democracy.

Second, Netanyahu is currently a caretaker prime ministerthat is, prime minister by default due to the political deadlock. He does not enjoy the confidence of the Knesset, having twice tried and failed to assemble a coalition capable of receiving that confidence. From a constitutional perspective, disqualifying a prime minister in the current situation is different from disqualifying a prime minister who heads a coalition that has the support of the majority of the Knesset and thus enjoys political and public legitimacy. It would not abrogate the will of the voters, expressed through their elected officials, to the same degree as disqualifying a prime minister who enjoys the confidence of the Knesset.

But the courts decision to stay away from the matter for now means that this ship has sailed. If Netanyahu manages to secure a majority after the March elections, his political fate will come down to the outcome of the immunity vote and the presidents decisionand the likely review of these decisions by the Supreme Court. There is no telling what the political repercussions of such a constitutional showdown would be.

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Netanyahu and the Anatomy of a Constitutional Crisis - Lawfare