Back Into the Abyss: Israel’s Government Fires Attorney General, Supreme Court Blocks the Move

On Aug. 4, the government of Israel decided unanimously to remove from office Israel’s attorney general (AG), Gali Baharav-Miara. Almost immediately, Justice Noam Sohlberg, vice president of Israel’s Supreme Court, issued an interim order suspending the legal effect of the government’s decision until a panel of the Supreme Court, sitting as a High Court of Justice (that is, exercising the court’s administrative and constitutional review jurisdiction) has had the chance to consider the pending petitions against the decision and the process leading to it. The High Court of Justice hearing is scheduled for Sept. 3.

These developments put Israel’s government once again on a collision course with the country’s legal system. Since the position of AG in Israel traditionally has been seen as a critical component of the country’s rule of law guardrails, the attempt to remove her from office, in ways whose legality are themselves highly questionable, constitutes another escalation in the current government’s approach to the rule of law. The fact that these events are unfolding while Israel is in the midst of a long and difficult war renders the move even more controversial and troubling.

Background: How Israeli AGs Are Hired and Fired

The AG fulfills a key role in Israel’s legal system. She heads the state legal service, including the state prosecution and different legal units tasked with representing the government in court, and she provides legal advice to the Israeli government and other governmental departments and agencies. What’s more, according to High Court of Justice jurisprudence, she is the ultimate interpreter of the law for the executive branch, subject only to contrary Supreme Court rulings. In the event of a disagreement between government ministers and the AG regarding the legal position that the Israeli government should present in court proceedings, the state’s attorneys represent the AG’s legal position and not the government’s (they may note, however, the divergent position of the government). At the request of the government, the AG may authorize ministers or the whole body of ministers to be separately represented in the proceedings (typically through a private law firm). Such separate representation was in the past a rare occasion. For example, in the six years preceding the term of the current government—in which several different governments held power—four requests for separate representation were made, with the AG approving only two of them. Under the current government, the number of requests and approvals has risen sharply. Twenty-eight requests for private representation were made, and 18 were approved, reflecting the tension between the two institutions. While some cases against the current government involving separate representation are still pending, it is interesting to note that in all disposed cases in which private representation to the government was approved, the High Court of Justice has generally sided with the AG.

Given the importance of the role of the AG and past scandals involving attempts to exert inappropriate political pressures around the process of AG hiring and firing, the Israeli government decided in 2000 to adopt the recommendations of a public commission and to reform the AG appointment and termination process. In its 2000 configuration, the process involves a public-professional vetting committee comprising five members: a retired Supreme Court justice (appointed by the current president of the Supreme Court, with the consent of the minister of justice); a former minister of justice or AG (appointed by the minister of justice); a member of the Knesset (appointed by the Knesset’s Constitution, Law and Justice Committee); a member of the legal bar (appointed by the Israel Bar Association); and an academic (appointed by the local law school deans). The vetting committee reviews the candidates nominated by the government or by members of the committee itself, and submits for final approval of the government the names of one or more suitable candidates.

Significantly, the same government decision also provided a process for terminating the service of an AG in the event of misconduct, lack of capacity, criminal investigation of the AG, or if “there exist substantial and long-lasting disagreements between the government and the Attorney General, which create a situation that prevents effective cooperation.” In such cases, the minister of justice has to ask the vetting committee to opine in writing on the matter (after enabling the AG to appear before the committee to contest the removal motion), and the AG can also appear subsequently before the government or a panel of government ministers to argue against removal. Only then can the government decide to remove the AG.

This intricate process is designed to ensure the independence of AGs and to minimize their political dependency on the government of the day. It should be recalled in this connection that the government’s 2000 decision set the term of service for AG at six years (nonrenewable), implying that an AG appointed by one government may very well continue to serve another government—as is the case now (Baharav-Miara was appointed in 2022 by the Bennett-Lapid government). Under this process, the government may decide whether to appoint or remove from office the AG, but any specific decision must first go through the vetting committee and be later subject to judicial review. The efforts by the current government to short-circuit the process and to circumvent the vetting committee are at the heart of the present legal and political crisis.

Irreconcilable Differences?

Baharav-Miara has clashed with the current government almost from the first day of its tenure. On Jan. 4, 2023—less than a week after the new government was sworn in—Minister of Justice Yariv Levin announced his plan for sweeping reforms in the Israeli legal system, including significantly weakening the power of the Supreme Court and politicizing the governmental legal service. The AG expressed on multiple occasions her opposition to the plan—which she regarded as weakening Israel’s democratic structures—and has aligned her positions on a number of occasions with public interest petitioners who challenged before the High Court of Justice different components of the proposed reforms and other related matters. She also opposed—on principled legal grounds—other controversial government efforts, including measures aimed at, or resulting in, the politicization of civil service appointments and to extend—contrary to Supreme Court rulings on the matter—the exemption of the ultra-orthodox from military service. On other issues—for example, with regard to the Gaza war—the AG has been generally less confrontational, and her office defended on behalf of the government of Israel a number of legal challenges to specific war-related policies and practices.

The frequent disagreements between Baharav-Miara and the government have created animosity between her and many ministers. This tense atmosphere adds to the serious tensions arising out of the criminal proceedings against Prime Minister Benjamin Netanyahu for corruption offenses, which are run by prosecutors operating from the AG office. On March 5, Minister of Justice Levin launched a process to remove Baharav-Miara from office, and sent to his colleagues an 85-page letter, chronicling a list of allegations against the AG: derailing governmental policy, legislation, and appointments; refusal to represent the government in court or affording it ineffective representation; selective law enforcement; action contrary to the public interest in handling strikes, international criminal proceedings, and domestic investigation into use of spyware by the police; and failure to tackle organized crime and criminality in the Arab sector. Levin asked the government to take a vote of no-confidence on the AG.

On March 23, Baharav-Miara sent her reply to Levin’s letter. As a procedural note, she observed that the process for termination decided upon in 2000 does not provide room for a no-confidence vote. On the merits, she claimed that what Levin presents as disagreements are in reality a dissatisfaction with her insistence, when reviewing proposals for new policies and measures that she deems unlawful and often also contrary to the public interest, that the government follows the law. Accepting that the government may remove AGs on grounds that they oppose legal violations would effectively place the government above the law, and allow it to operate without checks and balances. Baharav-Miara also noted that she and her office have supported the implementation of many hundreds of other governmental decisions and draft bills, and represented it in thousands of cases. The cases of opposition noted in Levin’s letter are therefore the exception and not the rule. This did not stop the government from unanimously adopting a vote of no-confidence in the AG. Following the vote, Levin called on the AG to resign, but Baharav-Miara ultimately refused to do so.

Changing the Rules of the Game

The next logical step for Levin should have been to convene the vetting committee, pursuant to the 2000 procedure. It soon became clear to him, however, that this avenue would likely not result in the removal of the AG from office. Out of the five members of the committee that recommended Baharav-Miara’s candidacy in 2021 (prior to her appointment in 2022), only three still serve—the representatives of the judiciary, academia, and the bar association (the terms of service for the representatives of the Knesset and the government have expired and no replacements have been appointed). The Knesset has not yet selected a representative; but more seriously—none of the previous ministers of justice or AGs, who the government could select to represent it on the committee, have indicated their willingness to serve on a committee and/or to support the removal of the serving AG from office. Given that the representatives of the judiciary and bar association were expected to oppose the removal request, Levin would not have a majority on the committee to support his motion. What’s more, a decision by the government to terminate the AG over the objections of a vetting committee that was designed to protect the independence of the office of the AG would most likely be struck down by the High Court of Justice.

In view of this deadlock, Levin moved in a different direction. On June 8, he submitted to the government a proposal to change the process for removing AGs from office. According to the new procedure, the government would no longer be obligated to turn to the vetting committee before voting on removal of the AG; instead, it may act upon the recommendation of the special committee of ministers (whose composition was determined by the June 8 decision). The AG may appear and argue her case before the special ministerial committee. The government may then proceed to remove the AG—provided that 75 percent of the government ministers support such a move. Baharav-Miara strongly opposed the proposed change of procedure, claiming that it would be illegal: It represents a sudden change of “rules of the game” without sufficient study and preparation, and it is aimed at releasing the government from facing the expected outcomes of a removal process that was specifically designed to ensure the independence of the AG. Still, the government voted unanimously to change the procedure.

Acting pursuant to the newly adopted procedure, the special committee of ministers convened twice, invited the AG to appear before it (which she refused to do in view of her position that the new procedure is unlawful), and recommended to the government that it remove the AG from office due to her substantial and long-lasting disagreements with the government. That recommendation was adopted unanimously by the plenary government on Aug. 4.

Back to the Court

On June 9, almost immediately after the government decided to change the composition of the vetting committee, several nongovernmental organizations and individuals submitted a petition to the Supreme Court sitting as a High Court of Justice. They claimed that the decision to change the procedure for removing the AG was illegal, and asked the court to issue an interim order halting the removal process. The request was assigned to Justice Sohlberg, the deputy president of the court (Sohlberg is widely considered to be the leader of the conservative faction on the bench). On July 13, he issued a decision denying the request for the interim order. In his decision, Sohlberg reiterated the importance of the independence of the AG and the normative status of her legal positions. Still, he opined that the court should not intervene before the government has actually decided to remove the AG.

After the special ministerial committee issued its recommendation to remove the AG, the petitioners made a second attempt to request an interim order. Once again, Justice Sohlberg took the cautious route. In keeping with his general position that the court would review the action only after it has taken place, he rejected on July 29 the request for an interim order. However, Sohlberg decided that if the government would decide to remove the AG, the decision would not have a legal effect until the court had a chance to review it.

On Aug. 3, after the government decided to remove the AG, a third request for an interim order was submitted to the court. This time, Justice Sohlberg immediately issued a temporary order, suspending the legal effects of the government’s decision pending judicial review. Sohlberg emphasized that the position of the AG remains unchanged, regardless of the decision, and that her opinions have the same legal weight that they had before.

The court’s issuance of the temporary order did not go unchallenged, however. One of the most vocal opponents of the AG and the court among government ministers—Minister of Communications Shlomo Karhi—wrote to employees of the Ministry of Communications that the decisions of the AG were no longer binding on them (note that the ministry’s own legal adviser wrote a countermanding letter, alerting employees of the court’s interim order). The petitioners in the AG removal case approached the court, asking for a new interim order and asking it to find Minister Karhi in contempt of court. On Aug. 10, Justice Sohlberg reiterated the validity of the interim order in force and its binding effect for all governmental departments. He criticized Karhi’s letter, referring to it as “contrary to basic tenets about the rule of law,” but opined that it would be premature to invoke the contempt of court procedure before exhausting other law enforcement options.

Then, on Aug. 12, Minister Levin pulled another stunt: He ordered that the locks of the doors to the Tel Aviv office of the Ministry of Justice be changed, thereby blocking Bahrav-Miara from using the office, as she routinely did. Levin claimed that because Bahrav-Miara was removed from office, her use of the premises was unauthorized. Here too, a motion for contempt of court has already been filed by one of the petitioners in the AG removal case and will be considered by the High Court of Justice soon.

It’s also important to note that on Aug. 7, Justice Yizhak Amit, the court’s president, issued a decision according to which an expanded nine-justice panel will hear the AG removal petition on Sept. 3.

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The Israeli government’s decision to remove the AG is the latest installment in the government’s ongoing attempt to weaken the institutional “gatekeepers”—a few public officials who possess an independent status in the Israeli legal system and bureaucratic structures, and who afford important checks on the ability of any government of the day to abuse its legal authority. A few months ago, the director of the Shin Bet was effectively forced to retire. In addition, the Supreme Court had to intervene in order to curb efforts by the government to politicize the office of the director of the civil service. The government also forced in the last year several long-serving legal advisers of government ministries to retire.

In the face of this threat to the independence of Israel’s gatekeepers, the Supreme Court appears to have been somewhat divided: The court’s president, Justice Amit (whose own appointment process has been challenged by the government), issued forceful judgments rejecting some of the government’s attempts. Justice Sohlberg, by contrast, has adopted a more conservative line, advising the court to remain cautious in addressing governmental exercise of powers of appointment and removal from office. It seems to us, however, that faced with the dismissive approach of the current government toward the very idea of institutional gatekeepers, there is no real practical difference in outcomes between Amit and Sohlberg. The government moved forward in its attempt to remove the AG from office, despite Sohlberg’s call for restraint on its part that would render judicial intervention redundant; and, at the end of the day, if Sohlberg joins Amit in striking down the decision to remove the AG, he will not be spared harsh criticism from the government and its supporters.

Most likely, the High Court of Justice will strike down the government’s decision to remove the AG. Even the more conservative justices, preaching judicial restraint, will find it hard to accept such an aggressive abuse of authority, which involves a real-time change of the rules of the game and a frontal assault on the independence of the most important gatekeeper in Israel’s legal system. We are anxious, however, that several members of the government might declare in response to such a decision that they refuse to accept the legitimacy of the continued service of the AG. Indeed, there have already been calls by some ministers to stop inviting her to government meetings. This will set in motion a full-blown constitutional crisis, to which the Karhi letter and Levin’s changing of the locks are merely harbingers.