The official title of Israel’s attorney general is “legal advisor to the government,” yet that seemingly innocuous designation conceals a position of tremendous power, privilege and authority. In addition to serving as chief legal counsel to the government, this civil servant heads the criminal prosecution system, represents the state in all legal proceedings and determines the principles of the public interest in any legal matter.
As a result, no single public official wields nearly as much dominance over the government as does Israel’s attorney general.
One would expect that a dutiful legal advisor, entrusted with implementing cabinet policies and appointments while maintaining an absolute monopoly over the government’s representation before the courts would diligently serve its “client” in good faith, loyalty and unshakeable determination.
Indeed, wouldn’t that be the minimum requirement of any competent individual filling this position? And if, in all good conscience, such an official felt unable to perform his duties as demanded, wouldn’t the responsible reaction be simply to resign the position?
That is precisely what happened during former President Richard Nixon’s notorious “Saturday Night Massacre,” when both the U.S. attorney general and his deputy resigned after refusing to dismiss the special prosecutor appointed to investigate the burgeoning Watergate scandal.
Israel’s current Attorney General Gali Baharav-Miara, however, sees things differently. Whenever she deems that the government strays from the path (i.e., in any way contrary to her professional opinion), not only does she refuse to represent the administration when challenged in court, but often aligns herself with those seeking judicial intervention against the very government she is meant to advise.
Far from fulfilling the role of legal advisor to the government, in practice, Baharav-Miara has effectively become the most prominent leader of the opposition, eclipsing even the most combative politicians, who can only watch her confrontational posture with envy.
So, too, in her public pronouncements, Baharav-Miara is wont to level scathing attacks against those she is purported to represent. “As the current Knesset’s term reaches its end, the government has launched a race to dismantle the democratic institutions,” she ominously warned at the recent Israel Bar Association annual conference in Eilat.
And, as the indefatigable standard bearer for every grievance against Israeli Prime Minister Benjamin Netanyahu and his cabinet, she simply couldn’t resist adding the purely political jibe: “It is impossible, from a legal standpoint, to comply with a situation in which, on the one hand, the government increases the burden on those who serve; and on the other hand, the government allows mass draft‑dodging—some would even say encourages it.”
Besides serving as a stalwart opponent to the government’s efforts at judicial reform, Baharav-Miara has made it her personal crusade to refute the propriety of nearly every major appointment decided upon by the government.
So when petitions were filed before Israel’s Supreme Court against the nomination of Roman Gofman, a major general in the Israel Defense Forces, as the next Mossad chief, Baharav-Miara abandoned any pretense of serving as “Legal Advisor to the Government,” and immediately endorsed the contentions of the self-styled “public petitioners.” Sparing no effort to disqualify the government’s right to choose, reports allege that she went so far as to send defamatory materials against Gofman, privately to the chairman of the Senior Appointments Advisory Committee (tasked with vetting candidates for Israel’s most senior public positions), behind the backs of the other three committee members.
But her antics didn’t stop there. In a disgraceful attempt to buttress her fierce objection to Gofman’s appointment, Baharav-Miara enlisted outgoing Mossad head David Barnea, apparently convincing him (falsely) that the court itself had requested his opinion on the nomination.
This was all too much for Alex Stein, one of the three Supreme Court justices hearing the petitions, and it’s worth quoting his caustic criticism at length:
“The petitions before us concern judicial review of the decision made regarding the integrity of Major General Gofman by the Senior Appointments Advisory Committee—that, and nothing more. Given the question of integrity, the person who is supposed to appoint or not appoint Gofman as head of the Mossad is the Prime Minister of Israel; he—not us. The Prime Minister’s decision on this appointment is the decisive one. The professional aspects of that decision are not entrusted to us, nor to anyone other than the prime minister. For this reason, I reject outright the improper attempt to turn the proceedings before us into a ‘Gofman trial,’ whose purpose is to determine whether Gofman is fit to head the Mossad.
“This attempt is reflected, for example, in the submission of the outgoing Mossad director’s letter, in which he expressed his view on Gofman’s suitability to lead the organization; and I must admit that I found it extremely difficult to understand the position of the Attorney General, who believed that reviewing this opinion would assist us in judicial review of the committee’s decision regarding Gofman.”
Stein went on to demolish the perverse assertion that the committee chairman’s minority opinion should be preferred over that of the majority opinion by the other three committee members. According to Baharav-Miara’s twisted reasoning, by virtue of the chairman being retired Supreme Court president Asher Grunis, with “extensive experience as a judge,” his stance on the matter merits special consideration. “This claim is no claim at all,” Stein acerbically retorted. The government decision establishing the Advisory Committee “did not grant superior status to minority opinions of those chairing the committee; and we must not invent a ‘legal rule’ that does not exist in reality or give legitimacy to such a rule.”
Yet even when Grunis later softened his opposition and recommended a deeper review rather than outright rejection, Baharav‑Miara urged the court to disregard his revised position and instead adopt his earlier, discarded categorical objection to the nomination.
To be sure, this is not the first time Baharav-Miara’s obsessive hostility to Netanyahu’s appointments has been stymied by the Supreme Court. When the cabinet decided on a temporary assignment (for all of three months!) of a senior law-school lecturer to chair Israel’s Second Authority commercial broadcasting regulatory body, she again sided with the petitioners against the government, while refusing to allow the communications minister responsible for the appointment to be represented before the court by his own independent counsel.
Not only did the court’s majority reject her contentions against the appointment but also sharply rebuked her, denying the communication minister’s request to be heard via independent representation.
“I turned it over and over, and yet could not find a solid legal basis for establishing such a standard [as argued by the Attorney General],” wrote Justice Noam Solberg. “I was not convinced that these references contain a basis, or even a mention, to this standard. Where we are dealing with such a sensitive issue, I believe that it is better to tread on as solid ground as possible. And as for the rest—go and learn.”
Despite these repeated confrontations—the kind no administration should be forced to endure from its own Legal Advisor—an expanded panel of seven Supreme Court justices (including aforementioned Noam Solberg and Alex Stein) unanimously overturned the cabinet’s decision to dismiss Baharav-Miara on account of its total lack of confidence in her ability to fulfill her duties faithfully, judiciously and effectively.
Such is the sorrowful State of Israel’s contorted legal system today. The electorate can choose who it wants to lead the country, but all too often, the real governing is subject to the whims of the ruling administrative elite.
Baharav-Miara has another two years in her tenure. Should a right-wing administration prevail in the upcoming elections, we can be certain she will do her utmost to continue serving proudly as the most influential figure in the opposition.
