How the Government’s Attorney Became Its General

By Evelyn Gordon

And now, for the Israeli judiciary's latest trick: Expropriating the attorney-general

The Bar-On affair provides a classic example of this. It was well-known even before the criminal investigation into the affair began that Hanegbi’s conduct had been far from commendable: He misled the cabinet into thinking that Supreme Court President Barak approved of Bar-On’s appointment, when in fact the opposite was the case. Rubinstein and Arbel concluded that such behavior, however reprehensible, was not criminal. Hanegbi then pounced on this as proof of his rectitude: “I have been strengthened in my opinion that there was nothing essentially wrong with the way I behaved during the proceedings to appoint the attorney-general, and State Attorney Edna Arbel’s decision clears my name of all the false accusations hurled at me.”⁸⁸ What was truly astonishing, however, was the degree to which the public and his colleagues tacitly accepted his claim: In most countries, a minister caught lying to the government would be pressured to resign by his own colleagues, for fear of the public’s reaction if he remained. But with a few exceptions, the coalition backed Hanegbi’s position that in the absence of an indictment, there was no reason for him to resign, and there was no serious pressure from the public to counteract this stance. The assumption appears to be that there is no such thing as a serious moral offense which is not also a legal one.

Such a premise is dangerous in any democracy. The law, by definition, sets the minimum standards of permissible conduct. Good government, however, demands a much higher moral standard. By far the most consistent and potent protector of that moral standard is public opinion—one of the reasons why freedom of press, speech and information are critical components of a functioning democracy. And if the public is taught that such moral judgments are the proper province of the attorney-general, it is too likely to abdicate this responsibility in the comfortable assurance that someone else will do the dirty work. What results is a vicious cycle: The government, unchecked by public outrage, follows its natural tendency to sink ever deeper into morally gray areas, and the attorney-general responds by assuming ever more moral authority—leading to an ever-deepening, and dangerous, public indifference to the vices and virtues of their leadership.

The Israeli legal community is not unaware of the problems raised by the attorney-general’s multiple role as the government’s judge, legal advisor and chief prosecutor, and how these problems have been exacerbated by his increased involvement in government affairs. State Attorney Edna Arbel recently proposed at least a partial solution: She suggested that the attorney-general’s power to open and close criminal proceedings be transferred to the state attorney. Since the latter is completely disconnected from the government, she argued, this will strengthen the prosecution’s status as a completely independent institution.⁸⁹

The problem with this solution, however, is that it would not solve any of the current system’s problems—problems which are caused not by the attorney-general’s ties to the political system, but by his alienation from political concerns.

The two most serious problems with the attorney-generalship today are only made worse by his independence. His powers to overrule the executive might not so undermine democracy if he himself had to answer to public opinion. Similarly, the confusion of moral and legal concerns—which both politicizes the criminal justice system and emasculates the public moral ethos—is only really a problem when the attorney-general is seen as being above politics, for who would seriously consider a politician’s moral judgments to carry the weight of law, or his legal judgments to carry the weight of morality? For these reasons, many Western democracies have chosen an expressly political attorney-general post, as the lesser of two evils.⁹⁰

Many Israelis find the idea of a political attorney-general abhorrent, because it raises the specter of politicized decisions on criminal proceedings. Yet this fear may be a chimera: Historically, both in Israel under the old system and in other countries, there have been relatively few cases of people being falsely accused or improperly let off due to political considerations, since in most democracies, the attorney-general is not the only line of defense against a corrupt government: In the Watergate affair, for example, President Richard Nixon’s first attorney-general, John Mitchell, was heavily involved in the cover-up, and Mitchell’s successor, Richard Kleindienst, at least failed to prosecute the case actively. Yet Nixon was ultimately forced by public pressure to appoint a special prosecutor, who would be independent of the Attorney-General’s Office. Indeed, the Senate passed a unanimous resolution in May 1973 calling for such a step, introduced by members of Nixon’s own Republican Party.⁹¹ Later that year, Nixon fired the special prosecutor, but was immediately forced by public pressure—again, led by his own party—to appoint a replacement.⁹² The work of these two special prosecutors ultimately forced Nixon to resign and led to a host of indictments, convictions and jail sentences, including a substantial jail term for Mitchell.

In many ways, the danger is substantially greater with a non-political attorney-general, because there is an element of public control over a political attorney-general which is totally lacking with an “independent” one. A political attorney-general who failed to prosecute a major scandal, or abused his powers to prosecute political opponents, would tarnish the government and risk a backlash at the polls. This creates a strong disincentive for him to overstep the boundaries, and a strong incentive for his political colleagues either to restrain him or to replace him if he ignores those boundaries. In the case of the independent attorney-general, however, the only restraints are those imposed by his own character; however improper the public might consider his decisions, it has almost no tools for effecting his ouster.

This is even more true in the realm of policy. A political attorney-general who made a habit of thwarting the government’s policy agenda would quickly be removed, while the government is helpless against the dictates of the independent attorney-general. More importantly, however, a political attorney-generalship would place the judgment as to whether a policy is proper or not back where it belongs: In the hands of the voters’ elected representatives, and ultimately, in the hands of the voters themselves, who will reward or punish the government for its decisions come election day. Nor is the public without recourse should the attorney-general approve something which is actually illegal: They can always challenge the policy in court.

The powers of the attorney-general have been growing unchecked for almost half a century, thanks to the distorted view of the position as a judicial rather than political role. Against the backdrop of a constantly growing role of the courts in Israel, the new attorney-generalship represents a frightening encroachment by the judiciary branch into the executive realm, a further usurpation of the privilege of the electorate in a country already suffering from an over-empowered judiciary and a disempowered voter. It is long past time to correct this distortion and return the executive authority of the attorney-general to the government ministers who were elected to wield it.

Evelyn Gordon is a journalist who writes on legal affairs.

Notes

1. Amitai: Citizens for Good Government and Integrity v. The Prime Minister of Israel (HCJ 4243/93, 4287/93 and 4634/93), in Decisions of the Israel Supreme Court, vol. 47, section 5, p. 441. Since Pinhasi was the main focus of the decision and listed second among respondents after Rabin, the verdict has become known as the Pinhasi decision.

2. The Jerusalem Post, July 4, 1962.

3. Yechiel Gutman, The Attorney-General versus the Government (Jerusalem: Edanim, 1981), p. 48. [Hebrew]

4. Gutman, The Attorney-General,p. 52.

5. Cohen occupied the ministry for only seven months, but continued as attorney-general for the next eight years. What forced him out as minister, however, was not any sense that the dual role was improper, but ordinary coalition politics: Seven months after Cohen became a minister, David Ben-Gurion succeeded in persuading another party to join his government, and he needed a ministry to offer the newcomers. Cohen, not being an official representative of any party, was the easiest minister to dismiss to free up the necessary seat.

6. Ha’aretz, May 30, 1954.

7. The Jerusalem Post, October 29, 1962.

8. The Jerusalem Post, October 29, 1962.

9. Ha’aretz, February 3, 1966.

10. The Jerusalem Post, October 24, 1960.

11. The Jerusalem Post, December 8, 1964.

12. Protocol of the Knesset Subcommittee on Basic Laws, May 6, 1968, p. 6.

13. Quoted in Gutman, The Attorney-General, p. 211.

14. Gutman, The Attorney-General, p. 275.

15. Gutman, The Attorney-General, p. 232.

16. Protocol of the Knesset Subcommittee on Basic Laws, May 6, 1968. See, for example, the statements of subcommittee chairman Haim Zadok (“The justice minister should be able to take upon himself all the powers of the attorney-general,” p. 8) and of former attorney-general MK Moshe Ben-Ze’ev (“I favor the proposal that the justice minister should be able to take upon himself those powers of the attorney- general granted by laws for whose implementation the justice minister is responsible, but other ministers should not be able to take the attorney-general’s powers upon themselves,” p. 6).

17. Protocol of the Knesset plenum, August 13, 1968.

18. Since Prime Minister Golda Meir decided to accept Shamgar’s decision, it could be argued that he was not really setting himself in opposition to the government. However, it was quite clear to all concerned at the time that Meir was merely bowing to a decision she felt she could not change. It was for this reason that the religious parties responded by trying to pressure the attorney-general directly, rather than concentrating their efforts solely on the prime minister—for they knew who the real source of the decision was. See, for example, Ha’aretz, May 24, 1970).

19. Gutman, The Attorney-General, p. 213.

20. Ha’aretz, May 26, 1970.

21. Ha’aretz, June 2, 1970.

22. Gutman, The Attorney-General, pp. 214-215.

23. Gutman, The Attorney-General, p. 216.

24. Gutman, The Attorney-General, pp. 215-216.

25. Gutman, The Attorney-General, p. 244.

26. Gutman, The Attorney-General, p. 248.

27. Gutman, The Attorney-General, p. 281.

28. Gutman, The Attorney-General, pp. 328-329.

29. Gutman, The Attorney-General, p. 324.

30. Gutman, The Attorney-General, p. 324.

31. Gutman, The Attorney-General, p. 325.

32. Gutman, The Attorney-General, pp. 325-326.

33. Gutman, The Attorney-General, p. 331.

34. Gutman, The Attorney-General, pp. 338-341.

35. Yedi’ot Aharonot, April 7, 1978.

36. The Jerusalem Post, June 16, 1978.

37. Ha’aretz, July 10, 1978.

38. The Jerusalem Post, May 8, 1981.

39. The Jerusalem Post, May 8, 1981.

40. The Jerusalem Post, May 18, 1986.

41. The Jerusalem Post, December 14, 1984.

42. The Jerusalem Post, December 14, 1984.

43. The Jerusalem Post, December 14, 1984.

44. The Jerusalem Post, December 31, 1979.

45. The Jerusalem Post, January 20, 1980.

46. The Jerusalem Post, April 26, 1982.

47. The Jerusalem Post, July 10, 1980.

48. The Jerusalem Post, May 16, 1986.

49. The Jerusalem Post, May 13, 1986.

50. The Jerusalem Post, May 13, 1986.

51.The Jerusalem Post, May 13, 1986.

52. Hebrew University professor Claude Klein, quoted in The Jerusalem Post, May 16, 1986.

53. Ha’aretz, September 10, 1993.

54. Ha’aretz, September 10, 1993.

55. The Jerusalem Post, August 30, 1993.

56. The Jerusalem Post, August 10, 1993.

57. Amitai, p. 473.

58. Yedi’ot Aharonot, September 9, 1993.

59. Ha’aretz, September 9, 1993.

60. Ha’aretz, September 9, 1993.

61. The Jerusalem Post, October 13, 1994.

62. Since the Supreme Court has recently asserted the power to annul even Knesset legislation, such legislation might still be insufficient to protect the policy in question. However, it would make it much harder for the court to act, since the necessary justifications for overturning Knesset legislation are much more stringent than those needed to overturn an administrative decision or a municipal bylaw.

63. The Jerusalem Post, October 13, 1994.

64. The Jerusalem Post, October 13, 1994.

65. As a policy decision, however, the branding of the agreement as “inappropriate” was even more egregious. Certainly, many people did object to the agreement, even within the Labor party itself. But it was hardly an outrageously unreasonable policy. First of all, the religious status quo has always been a major electoral issue in Israel, and a significant portion of the electorate strongly supports maintaining it. Indeed, the erosion of the religious status quo under the Labor-Meretz government of 1992-1996 was considered to be an important factor in Netanyahu’s surprise victory in the 1996 election, and a commitment to preserving the status quo was an integral part of the Netanyahu government’s coalition agreements. More important to Rabin at the time he signed the deal, however, was the fact that in order to continue with the Oslo process, he desperately needed Shas as a coalition partner. Without Shas’ six seats, he represented a minority government, which might not have been able to make the highly controversial concessions Rabin was planning. Yet Shas had refused to join the government without this promise. Like any politician, Rabin was willing to concede a point he considered minor—the religious status quo—for the sake of obtaining his major policy objective: Support for the peace process.

66. Ha’aretz, June 12, 1996.

67. The Jerusalem Post, June 13, 1996.

68. The Jerusalem Post, July 4, 1996.

69. Ha’aretz, August 13, 1996.

70. Gutman, The Attorney-General, p. 324.

71. See, for example, Yedi’ot Aharonot, August 16, 1996, and Ha’aretz, December 4, 1996. Not to be outdone, Netanyahu chose the time-honored route of leaving his attorney-general out of the loop as much as possible until the latter finally resigned over his lack of influence—hardly the most efficient way to run a government.

72. Ha’aretz, June 22, 1997.

73. Ha’aretz, June 8, 1997.

74. Ha’aretz, June 20, 1997.

75. Ha’aretz, December 4, 1996. Yahalom’s committee would consist of the Supreme Court president plus two justices of the president’s choosing; two representatives of the Israel Bar Association, chosen by the association; the prime minister, the justice minister and one other minister chosen by the cabinet; and the Knesset speaker plus two MKs chosen by the Knesset (one from the coalition and one from the opposition).

76. While the government could theoretically call upon a private organization to petition the High Court against the attorney-general’s opinion, such a move would have little chance of success since the government itself would be unrepresented in court, and since the legal presumption is in the attorney-general’s favor.

77. Ha’aretz, May 16, 1997.

78. Ha’aretz, May 16, 1997.

79. Quoted from the declaration submitted by the State Attorney’s Office to the High Court of Justice, November 12, 1996.

80. Rubinstein made the decision on Netanyahu, but left the decision on Hanegbi to Arbel because he felt he had a conflict of interest, since Rubinstein’s wife is a senior Justice Ministry official.

81. Ha’aretz, April 21, 1997.

82. Ha’aretz, April 23, 1997.

83. Ha’aretz, April 23, 1997.

84. Ha’aretz, May 15, 1997.

85. Ha’aretz, May 15, 1997.

86. Ha’aretz, April 23, 1997.

87. The Jerusalem Post, September 9, 1993.

88. Ha’aretz, April 24, 1997.

89. Ha’aretz, June 15, 1997.

90. In the U.S., the attorney-general is a cabinet member, appointed by the president and approved by the Senate. In the U.K., the attorney-general is a minister in the government, and must be a member of Parliament.

There has recently been a substantial movement among Americans of all political stripes to make the United States’ prosecutorial system even less independent —though it is already tame compared to its Israeli counterpart. The current outrage is focused on the institution of the independent counsel, which was created as a response to Watergate. Despite the success of the combination of a political attorney-general and a special prosecutor in obtaining indictments and convictions in Watergate, Americans were so traumatized by the corruption in the Attorney-General’s Office during this scandal that they decided to try making the prosecution more independent of the executive. In 1978, therefore, Congress passed the Ethics in Government Act, which stated that if the attorney-general had credible evidence that a crime had been committed by one of seventy-five executive branch officials listed in the law, he could ask a special panel of three federal judges to appoint an independent counsel. This counsel is completely independent, answerable to no elected official at all. Ten years ago, conservative Supreme Court Justice Antonin Scalia warned that an unaccountable independent counsel was an invitation to abuse, since it is precisely political accountability which is the most effective check on governmental power. At the time, he was a voice crying in the wilderness. The dubious tactics used by independent counsel Kenneth Starr in his numerous investigations of President Bill Clinton, however, have sent shock waves through the liberal establishment, and liberals are now joining conservatives in demanding a check on this institution. Scalia’s ten-year-old opinion, reported The New York Times, is now “being passed around in liberal circles like samizdat.” “The real question is whether something designed to promote public confidence is in fact undermining it,” said Katy Harriger, an associate professor of politics and author of a book on the independent counsel. Linda Greenhouse, “Ethics in Government: The Price of Good Intentions,” The New York Times, February 1, 1998. But for many liberals, this has ceased to even be a question. “Now I know that its creation was a mistake,” wrote Paul Simon, a former Democratic senator who voted in favor of the Ethics in Government Act in 1978. Simon said the office has become a magnet for politically ambitious lawyers, who, once appointed, pursue high-profile investigations in order to make a name for themselves—“often with a zeal and a budget out of all proportion to the alleged violation of the law.” Paul Simon, “One Attorney General for 10 Years,” The New York Times, February 1, 1998. “The framers of the U.S. Constitution well understood the danger that Kenneth Starr illustrates: Give anyone absolute power, and he may abuse it, no matter how good his intentions,” concurred liberal columnist Anthony Lewis. “That is why they created our elaborate system of checks on power. The independent counsel statute has given us a creature outside the constitutional system.” The International Herald Tribune, February 3, 1998.

91. Fred Emery, Watergate (New York: Times Books, 1994), pp. 355-357.

92. Emery, Watergate, pp. 397-407.

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