The Controversy Surrounding the Appointment of Attorney General Avichai Mendelblit

In recent weeks, political and legal news in Israel have devoted a lot of attention to the appointment of Avichai Mendelblit as Attorney General (“AG”). Below is a summary of the Israeli Supreme Court’s decision in two petitions challenging the appointment, first because Mendelblit was the lone candidate for the position, and second for allegations of conflict of interests. The Court’s decision, authored by Justice Joubran, unanimously rejected the petitions (the decision was handed down on February 1, 2016, with reasons handed down March 1, 2016.)

At the outset, the Court noted there was no dispute that Mendelblit, who earned a doctorate in law and formerly served as the IDF AG, was qualified for the position.

The petitioner in 46/16, The Movement for Quality Government in Israel v. The Government of Israel and Others, argued that by suggesting only one candidate to the Minister of Justice, the recruiting committee eliminated Executive discretion, thereby exceeding its role as an advisory body. In addition, the unofficial committee’s meetings with the Minister of Justice raise the real possibility that the committee was motivated by irrelevant and impermissible political interests. Therefore, both the committee’s recommendation and the Executive’s resulting appointment were unreasonable.

The other petitioner, in 43/16, Ometz – Citizens for Proper Government and Social and Legal Justice v. The Government of Israel, claimed that the conclusions of a criminal investigation against Mendelblit (in the “Harpaz” case) casts a normative and value-based shadow over him, making him ineligible for this position. The Harpaz case involved a criminal investigation into a forged document regarding the potential appointment of Yo’av Galant as the IDF’s Chief of General Staff. The content of the document, and the fact that it was a forgery, caused a rift between the Ministry of Defense and the IDF and implicated several senior officers, including then-IDF Chief of General Staff, Gabi Ashkenazi. Mendelblit, who served as IDF AG at the time the document was written, was suspected of fraud and obstruction of justice. AG Yehuda Weinstein decided to end the investigation against Mendelblit in May 2015. The recruiting committee’s decision to refrain from any conclusions based on Mendelblit’s role in the Harpaz case was also without authority, making its decision extremely unreasonable. Moreover, that the Israeli Government also ignored Mendelblit’s criminal involvement was likewise unreasonable.

The State argued that the number of candidates is not set in statute or Executive resolutions and thus essentially is not mandatory. It argued in addition that the Government could have required the committee to recommend more candidates after the initial recommendation but once it chose not to do so, the committee did not act unreasonably. As for the Harpaz case, the State maintained that the committee and the Government considered this but did not find it sufficient to block Mendelblit’s appointment. As for the conflict of interest, the State argued that the AG position is a professional and regulated position. Mendelblit is qualified based on his professional experience and background rather than through any political activity.

The Supreme Court rejected the petitions unanimously. It relied on well-established precedent that the Court would intervene in a decision to appoint a candidate to a high-level, professional public office only when the decision was clearly and extremely unreasonable. Under the principle of comity between branches of government, the Court does not substitute the appointing authority’s discretion for its own. Judicial review of discretion is confined to determining whether the appointing authorities exercised reasonable discretion by considering all relevant factors and attributing proper weight to each of them. Unless the chosen option is extremely unreasonable, the competent authority may opt for it without having to worry about judicial intervention.

The Executive resolution that constituted the committee authorized it to recommend one or more candidates and the Government to ask the committee to recommend more or alternative candidates should the Government not appoint any of the initially recommended candidates. Despite asking for three candidates, the Minister accepted the single recommendation because Mendelblit was the only candidate to receive the necessary majority of votes. Recommending the only candidate to receive enough votes does not exceed the committee’s authority, whereas the alternative of recommending candidates who did not receive enough votes would have done so.

As for the Harpaz case, Mendelblit presented the committee with documents as to his investigation, communications with then-AG, and the AG’s decision not to further pursue the investigation against Mendelblit. The committee examined these documents and, on their basis, concluded it could not make any findings. However, according to the Court, regardless of whether the committee could have made findings, which it was only required to consider (which it did), the question whether past conduct negates eligibility turns on whether such conduct reveals a character flaw which goes to the heart of one’s performance in the intended public position, or impacts the value of the image of public service to an extent requiring ineligibility. When the relevant past conduct is not criminal, the flaw must be more serious and its impact on the image of public service stronger in order to justify blocking one’s appointment for the office. In this case, both the former AG and the committee chair did not believe the former conduct reduces Mendelblit’s fitness. Though his conduct was not impeccable, the former AG concluded that he ultimately “did the right things as soon as possible.”

Lastly, as for the conflict of interest, the Court reiterated, based on the case law that removal from office or barring appointments are the most extreme response to conflicts and that a less restrictive alternative must be taken. In any event, the Court was not convinced, based on the nature of the position and Mendelblit’s qualifications, that there indeed was a conflict.

To conclude, the Court found there was no justification for its intervention in the committee, Minister, or Government’s decisions as none were sufficiently unreasonable. The petitions against Mendelblit’s appointment to AG were rejected.