Clash between gov't and attorney general reaching boiling point - analysis

A number of converging events have brought the ongoing clash between the government and the Attorney-General’s Office to unprecedented tensions, which may boil over into a constitutional crisis.

Attorney-General Gali Baharav-Miara is the government’s statutory interpreter of the law and her legal opinions are binding. She is also responsible for representing the government in petitions against it in the High Court of Justice.In addition, the A-G is the head of the state’s public prosecution apparatus, and, as such, oversees the work of the State Attorney’s Office and other law enforcement agencies.

The first flash point is Prime Minister Benjamin Netanyahu’s upcoming testimony in his corruption trial, which is set to begin on December 2. Without prior prompting, the heads of the coalition parties put out a statement on Thursday warning Baharav-Miara against determining Netanyahu legally incapable of carrying out his duties during his testimony, and temporarily removing him from office.

A sitting prime minister giving what could be weeks of testimony three times a week is unprecedented, and the coalition party heads’ statement reveals their level of concern that the attorney-general may decide that Netanyahu is incapacitated.

The prime minister is bound by a conflict-of-interest agreement that bars him from involving himself in any matters pertaining to the judicial system, including the attorney-general. An attempt by the prime minister to fire the A-G may result in the High Court ruling him incapacitated, and could lead to a constitutional crisis if he refuses to step aside.

The second flash point between the government and Baharav-Miara is an ongoing case against the reasonableness of MK Itamar Ben-Gvir’s service as national security minister. Ben-Gvir has repeatedly violated the law barring him from intervening in operational police matters, and she suggested in a letter to Netanyahu last week to “reconsider” his decision to appoint Ben-Gvir to the position, before she presents the government’s position to the High Court.

'Selective enforcement'

Netanyahu reportedly said during a government meeting last week that if the A-G and then the court attempt to force Netanyahu to remove Ben-Gvir from the position, it was a “sure way to lead to a constitutional crisis.” The prime minister reportedly hinted that he would not respect a directive to remove Ben-Gvir.

The third flash point is the ongoing dispute between the government and the attorney-general over the exemption for haredim (ultra-Orthodox) from IDF service. The legality of the exemption officially ended in late June, but the government has attempted to enact new legislation to continue to exempt most military-age haredim, and in the meanwhile has dragged its feet in launching a broad haredi draft. The government has also attempted to relieve haredim who refuse to enlist for service of financial sanctions.

Baharav-Miara has blocked many of these government initiatives by deeming them “not legally viable.” Another key figure in slowing the government’s attempts to find new ways to exempt haredim from service is the Finance Ministry’s legal adviser, Assi Messing. The government on Sunday decided to pass a measure that would end Messing’s employment within three months, along with six other legal advisors.

Baharav-Miara ruled the decision not legally viable and said it was an attempt to remove vital gatekeepers; the government nevertheless went ahead and passed the decision.

The fourth flash point is what government members are saying is the A-G’s “selective enforcement.” Netanyahu argued in recent weeks that ongoing investigations into leaks of top-secret documents from his inner circle were unfairly selective, since there were many other leaks during the war as well.

In addition, a large number of ministers blamed the attorney-general for lax enforcement against what they said was increasing incitement against the prime minister, claiming that it enabled protesters to work up the courage to fire flares in the direction of the prime minister’s house in Caesarea. Some ministers and coalition MKs even warned that Netanyahu’s life was in danger and that his “blood would be on her hands.”

These are just some of the points of tensions between the government and the country’s most important gatekeeper. A central tenet of the government’s controversial 2023 judicial reforms was the argument that there was too much power concentrated in the A-G’s hands.

The government attempted to weaken Baharav-Miara by advancing a law to render her opinions non-binding, to split her role into two separate positions, and other measures, none of which succeeded. Since then, the government has increasingly ignored her legal opinions, leading to the de-facto achievement of part of its aims to weaken her power.

With the prime minister’s testimony nearing, the tensions may boil over soon and lead to an attempt to remove Baharav-Miara from power or otherwise further curtail her powers.

Such a move would likely be brought before the High Court, which would likely rule in favor of the A-G. If the government does not respect the High Court ruling, Israel would be thrown into a full-blown constitutional crisis, all with an ongoing war and precarious security situation.