Search and Hit Enter

How an indicted Netanyahu put his Attorney General on trial

Prime Minister Benjamin Netanyahu has made history many times in his political career. When he won his first term as premier in 1996 he became Israel’s youngest-ever prime minister and the first born after the founding of the state. On July 20, 2019, he became the longest-serving.

On Sunday, when he stands in the dock in a Jerusalem courthouse as a defendant in a corruption trial, that, too, will mark a historic first for a sitting Israeli prime minister.

Everyone involved, and every side in the political tumult that perpetually surrounds Netanyahu, understands the enormity of the moment. Netanyahu’s refusal to step aside, as he once demanded of former prime minister Ehud Olmert when faced with corruption allegations, has transformed the court proceedings into a kind of proxy election, with Israelis’ opinions about Netanyahu’s culpability overlapping with their political views.

Netanyahu has fed that divide by railing against an “attempted coup” by police investigators and prosecutors, and turning his claim of a miscarriage of justice into a rallying cry for supporters.

That Netanyahu’s campaign against his accusers is a political act is a given. The trial set to begin Sunday is a double challenge for the prime minister: a personal legal challenge of proving his innocence and avoiding jail time, and a political challenge to prevent the trial from toppling him from the premiership and becoming the central truth of his legacy.

Most defendants claim they are innocent, but few can wield a major-party political campaign across three election cycles devoted to making the case. Netanyahu has done so successfully, with roughly half of Israeli voters demonstrating repeatedly either that they believe he is an innocent man or that they think his strengths as a leader outweigh whatever misdeeds he stands accused of.

That success was accomplished in part by a relentless campaign targeting the prime minister’s chief accuser, Attorney General Avichai Mandelblit, and resuscitating a 2010 scandal, the so-called “Harpaz affair,” that rocked the military’s high command and saw Mandelblit investigated for obstruction.

The neverending Harpaz affair

The affair was one of the strangest chapters in the history of the IDF, and despite endless investigations by journalists, police, the state comptroller and others, remains unresolved to this day.

In August 2010, Channel 2 news (today’s Channel 12) revealed the existence of a document detailing a public relations campaign to help promote then-southern command chief Maj. Gen. Yoav Gallant to chief of staff, in part by besmirching competitors for the job like then-deputy chief of staff Maj. Gen. Benny Gantz. Two weeks after the report aired, police investigators would inform then-attorney general Yehuda Weinstein that the document was fake, and was, in fact, intended to undermine Gallant’s bid for the army’s top job.

No one quite knows why retired IDF intelligence officer Boaz Harpaz forged the document, as he later admitted doing. Did he act alone, as he claimed throughout his trial? Or did it have something to do with the acrimony between then-IDF chief of staff Gabi Ashkenazi and then-defense minister Ehud Barak, especially after Barak declined in April of that year to extend Ashkenazi’s term as head of the army?

Did Ashkenazi commission the fake document in a bid to torpedo the nomination of Gallant, Barak’s top choice to replace him? It was a shocking possibility — that the head of the army allegedly engaged in a complex, dishonest scheme to stymie his political boss’s appointment of his successor. If true, it amounted to a kind of “putsch,” some media outlets opined.

Ashkenazi wasn’t the only suspect, to be sure, only the most shocking of them. Suspicion also fell at various points on aides and even family members. Mandelblit, at the time the military advocate general, was suspected at one point of helping Ashkenazi obstruct the investigation, though he was later cleared of wrongdoing.

No decisive evidence ever emerged implicating any specific culprit besides Harpaz himself.

Barak would go on to select Gallant as the next IDF chief, but the nomination was torpedoed by a separate scandal involving alleged zoning violations in the construction of Gallant’s home. It was deputy chief of staff Gantz who would go on to win the top job in February 2011.

The affair never seems to go away. It has endured long years of investigations: first the initial investigation ordered by then-attorney general Weinstein; then the launch of an inquiry by then-state comptroller Micha Lindenstrauss in October 2010 that produced its final report only in January 2013, recommending a criminal investigation; that criminal investigation only got underway in September 2013, followed by the questioning of several top ex-army officials, including Mandelblit, in mid-2014; then the closing of the cases against everyone but Harpaz before or during January 2016. Each step, of course, was accompanied by a media circus.

Then there are the leaks. Despite the gag order on much of the as-yet unpublished evidence, documents from the investigation have leaked over the years, reviving interest in the subject each time.

And finally, there are the individuals involved. Ashkenazi is now Israel’s foreign minister, Gallant its education minister and Mandelblit its attorney general. As long as key figures in the affair remain in the spotlight, it is likely to remain in someone’s interest to revive the unresolved questions that still haunt the episode a decade later.

‘A bombshell’

So it was that on May 8, Channel 13 anchor Ayala Hasson dropped a political bombshell by revealing the alleged contents of one transcript from a September 26, 2010 phone call between Mandelblit — then the army’s top lawyer — and chief of staff Ashkenazi, in which they discuss the investigation into the affair.

“I want Mandelblit’s conversation to be publicized,” Hasson said during the broadcast of the transcript, which remains under a gag order.

She claimed Mandelblit was trying to quash the publication of the transcript, which prosecutors in 2014 classified as inadmissible eavesdropping because neither party to the call knew they were being recorded. (Phone calls and conversations are routinely and automatically recorded in the chief of staff’s office, but Ashkenazi had specifically asked his aide not to record this one. For an unknown reason, the recording was not stopped.)

“I’ve already received messages sent by Mandelblit, and he sent people to write all sorts of things,” Hasson claimed. “This is drama, a bombshell, and I expect all my colleagues [in the press] to deal with this issue, this conversation in which the Military Advocate General Mandelblit tells Ashkenazi, ‘I’ll close this for you.’ I may be breaking the law by saying this. ‘I’ll close this for you.’ In his own voice. ‘I’ll make sure my deputy closes this, I’ll instruct her. I’ll make sure that Shuki Lamberger [a state prosecutor] will be there [by Weinstein’s side] and will tilt the scales in our favor.’”

She went on: “And Ashkenazi tells him, ‘The commissioner [of police] is with us and he’s looking out for us and he promised he’s looking out for us.’”

It was a startling moment of Israeli television, and Israel’s unabashedly partisan media immediately split in two between, on the one hand, those who decried Hasson’s violation of a gag order and abetting of Netanyahu’s campaign against his prosecutors and, on the other, those who insisted that the discovery that Israel’s current top law enforcement official may have once covered up crimes by senior military officials trumped any fallout that may result to the Netanyahu case. Needless to say, the two camps formed along depressingly predictable lines.

Hasson’s revelations were enough to put new wind in the sails of Netanyahu’s campaign, with supporters now alleging that the attorney general had been caught red-handed conspiring to obstruct the initial criminal probe into the Harpaz affair as far back as September 2010.

But as with everything else surrounding the Harpaz affair, the revelation produced a lot of noise without offering much hard information. Hasson herself acknowledged that her comments were a paraphrase of what the transcript contained, and called for its release.

Did Mandelblit tell Ashkenazi in the recorded call that he’d use his connections in the state prosecution to “push things in our favor?” Or, as with any attorney speaking to a boss or a client, did he simply promise to represent Ashkenazi and the military in a way that ensured no harm came to either? Hasson’s paraphrase isn’t clear or reliable enough to begin to answer that question.

Similarly, it’s anyone’s guess what Ashkenazi might have meant by claiming the head of the Israel Police was “with us,” as Hasson’s paraphrase claims. Police Commissioner Dudi Cohen and the head of the police investigations department had both met with Ashkenazi to brief him, as head of the army, on the conduct of the investigation before that September call. Did they offer a sympathetic ear — or a conspiratorial one?

In fact, a later police investigation would go on to recommend obstruction charges against both Ashkenazi and Mandelblit, suggesting that if Ashkenazi did believe Cohen was “with us,” he was mistaken.

The suspicions against Mandelblit

Mandelblit is a tangential figure in the original Harpaz affair but lies at the heart of the story 10 years on. The reason is obvious: the affair was resurfaced by those calling into question Mandelblit’s fitness to prosecute the prime minister.

Yet the fact that the case is being revived by political interests doesn’t mean that accusations against the nation’s highest law enforcement official can be tossed aside unexamined.

So what, exactly, does Mandelblit stand accused of?

Weinstein had two main suspicions about the military advocate general over the course of the investigation.

First, he suspected that Mandelblit tried to delay the initial investigation in August 2010 by incorrectly informing Weinstein’s assistant Raz Nizri that Ashkenazi didn’t have a copy of the Harpaz document.

Mandelblit told Nizri on August 9, three days after the initial Channel 2 broadcast, that he did not know where he could obtain a copy of the document for the investigators’ use, and urged that the state prosecution reach out to Channel 2 to obtain one. The following morning, at Mandelblit’s urging, Ashkenazi called Weinstein to admit that he had a copy — and had had it for many weeks. Mandelblit claimed he did not know that fact when he spoke with Nizri the previous day.

The second suspicion, raised in part by the transcript of the September 26, 2010 phone call cited on May 8 by Ayala Hasson, is that Mandelblit allegedly interfered with the investigation by briefing a nervous Ashkenazi about its progress using information he gleaned from colleagues inside the state prosecution.

As prosecutor Toni Goldberg would write in 2014, recommending an investigation of Mandelblit, the recordings suggest the possibility that Mandelblit told Nizri “a pure lie” about Ashkenazi’s possession of the document, and showed “the chief of staff worried at the possibility that [the investigation] will reach him, and trying to extract information [on the investigation] from Mandelblit.”

In September 2014, police recommended charging Mandelblit, along with Harpaz, former IDF spokesman Avi Benayahu and former Ashkenazi aide Erez Viner, with obstruction and breach of trust for allegedly failing to report everything they knew to investigators in a timely fashion.

In May 2015, Weinstein decided to close the case against Mandelblit, and a later ruling by the High Court of Justice concluded he had “done no wrong.” Weinstein closed the remaining cases (except Harpaz’s) in January 2016.

However, Weinstein did urge Netanyahu to reconsider Mandelblit’s position as cabinet secretary due to the questions surrounding his conduct in the affair. Netanyahu ignored this, and went on to nominate his then-ally to succeed Weinstein as attorney general.

Harpaz returns

Fast forward to November 2019 and Mandelblit’s announcement that he would indict Netanyahu on corruption charges in cases 1000, 2000 and 4000.

Shortly after that announcement, Netanyahu went on national television to declare that the police and the Mandelblit-led state prosecution were attempting a coup.

“I deeply respect the justice system in Israel. But you have to be blind not to see that something bad is happening to police investigators and the prosecution. We’re seeing an attempted coup by the police with false accusations,” Netanyahu railed.

That has been the theme of Netanyahu’s political campaign ever since. Something is rotten — not in Netanyahu’s conduct, but in the prosecutors hunting him.

On February 17, 2020, prior to Hasson’s revelations, Channel 13 published an “exclusive” report on “newly revealed” transcripts about Mandelblit’s role in the Harpaz affair.

The transcripts weren’t new. Most were published by other media outlets, including the Haaretz daily, as far back as 2014. But they sparked a new interest in the Harpaz affair among Netanyahu’s supporters — abetted, of course, by Netanyahu himself.

That interest has become increasingly focused and strident as Netanyahu’s trial has drawn closer.

On Wednesday, Netanyahu took to Twitter to share an opinion piece from a supportive Israel Hayom columnist demanding that Mandelblit either permit the publication of all materials from the Harpaz investigation concerning him — or resign. More tweets from the prime minister on Thursday included an op-ed claiming that he was the victim of a political show trial, and a warning from the respected public intellectual and law professor Ruth Gavison that the critical media attention around the Netanyahu investigation meant he “had no chance of getting a fair trial.”

Some Netanyahu supporters have been less delicate, borrowing from the discourse around US President Donald Trump to raise claims of a “deep state” conspiracy, sharing doctored photos of Mandelblit in prisoner’s garb, and in cases that are now the subject of a police investigation, sending the attorney general death threats to his personal cellphone.

‘We didn’t have this tape’

Mandelblit responded to that February 2020 report, which focused on his conversation with Nizri, in a talk at the Besheva conference on February 24. Calling the complaints against him “recycled,” he noted that his role in the Harpaz case has been litigated and relitigated countless times, and that each time he had been found innocent.

“My detailed response to the claims raised about my actions in this case were presented to the search committee [that in 2015 approved his appointment as attorney general] led by former chief justice Asher Grunis, and before the High Court of Justice [in early 2016], which heard the petitions against my appointment in an unusually large five-justice panel.”

He added: “All five members of the search committee concluded there was nothing in the claims against my conduct in the Harpaz document affair that could prevent my appointment as attorney general. That’s also what the five High Court justices concluded after hearing the petitions against the appointment and examining all the claims against me, including those connected to this affair.”

Unfortunately for Mandelblit, it’s not clear that’s true — that either the search committee or the High Court opened up the case closed by Weinstein or examined the allegedly damning recording mentioned by Hasson.

As former Likud justice minister and Mandelblit search committee member Moshe Nissim told Israel Hayom on Wednesday, “We didn’t have this tape [mentioned by Hasson], and we didn’t know there was such a tape. We only had the fact that the attorney general [Weinstein] had decided to close the case. There was some claim connected with Ashkenazi, but attorney general Weinstein had closed the case.”

Nissim went on: “If there is such a tape… it can’t be ignored. It should have come before the committee. Maybe if the relevant tape had been brought before us beforehand, we would have thought differently” about the appointment.

Nissim said Mandelblit had been cleared “on the criminal side. There wasn’t evidence for an indictment. But [prosecutors] didn’t consider the ethical side. I can’t tell you how I would have acted [had I had the tape], because to know how to respond and vote I had to know the facts, and that includes the full content of the recording.”

Nissim pointed to the steady stream of leaks to the media from Netanyahu’s corruption investigation.

“For four or five years now, not a day has gone by when Netanyahu wasn’t burned in fire by these leaks [from the prosecution], and no one acted to stop it. Now they refuse to release this? It creates the suspicion that there’s something they don’t want the public to know.”

The fog of war

Any attempt to sift through the facts of the claims against Mandelblit soon runs up against the comprehensively partisan nature of the debate.

Some Netanyahu supporters insist his prosecution is, put simply, a conspiracy.

That’s not an exaggeration. On February 17, Israel Hayom prominently featured a column by Amnon Lord who called the Harpaz affair “the start of the road for Ashkenazi, Gantz and Mandelblit — to take out not only Gallant, but also Netanyahu.”

Lord asserted that the three generals — it’s unclear how Gantz suddenly became embroiled in this theory of the affair — formed an alliance 10 years ago that amounted to a soft military coup. “That is, since 2010 we have a defense elite that doesn’t accept the rule of the political echelon.”

Less ambitious supporters of the prime minister have shied away from talk of complicated decade-long conspiracies and suggested instead that if Mandelblit does have something to hide from his time as the army’s MAG, and Ashkenazi, until last week one of Netanyahu’s bitter political foes, knows about it — that’s enough of a conflict of interest for the attorney general to recuse himself from dealing with Netanyahu’s trial.

Yet the very fact that Israel Hayom’s focus is centered so squarely on Mandelblit, and ignores Netanyahu’s new Foreign Minister Ashkenazi — now an ally in a unity government — demonstrates the political underpinnings of the purported concern over the attorney general’s ethics.

Even Nissim, who voted for Mandelblit’s appointment as attorney general and now says the committee hadn’t seriously looked into his involvement in the Harpaz affair, is a former Likud minister who just this week delivered a speech praising Likud’s Public Security Minister Amir Ohana for his strident defense of Netanyahu against his prosecutors.

Mandelblit has a strong argument that the campaign against him has no merit and should be ignored at least until its claims can be examined without connection to the Netanyahu trial. Given the tumultuous, muddled history of the Harpaz affair, it is quite likely that at least some part of the as-yet unpublished evidence collected in the investigation is vague enough to be interpreted either way, exonerating or implicating Mandelblit according to political whim. There is no chance whatsoever that the release of such evidence at this time won’t be misrepresented by the very political forces demanding it.

But Mandelblit’s critics also have a strong argument, one that does not require an Amnon Lord-style conspiracy to make its case.

Mandelblit’s bitter feud with acting state attorney Dan Eldad, appointed in January by Netanyahu ally and acting justice minister Amir Ohana, is a case in point.

The feud reached an astonishing climax last month when Mandelblit sent a letter to Civil Service Commissioner Daniel Hershkowitz opposing an extension of Eldad’s tenure on the grounds that he had exhibited “moral, professional and administrative failings” during his two months in office.

Eldad responded to the unprecedented criticism with his own never-before-seen chastisement of an Israeli attorney general.

Mandelblit’s criticism was “unfounded,” he said, and went on to imply that it reflected the anxiety of the guilty. The attorney general was reacting to “worrying” information Eldad had unearthed about him, he said.

Ahead of the Passover holiday, Eldad said, he had received a query from a journalist — a Channel 13 request to reopen the Harpaz investigation.

“To respond to the query, I requested to review the existing material on the matter at the State Attorney’s Office. The material formed a seemingly worrying picture regarding the handling of Mandelblit’s affairs,” Eldad said. “I updated the relevant parties on my intention to investigate the matter further before I responded.”

He added he had “no doubt” that this was the reason for the “violent and distorted” wording of Mandelblit’s statement.

“From day one… Avichai Mandelblit did everything possible to sabotage my work and interfere with my proper conduct,” he said.

An acting state attorney appointed by a Netanyahu confidant had made one major decision in his three months in the post — to reopen the Harpaz inquiry into Mandelblit.

As Channel 12’s conservative-leaning political analyst Amit Segal noted, it’s hard to imagine that Eldad’s sudden interest in the Harpaz affair was rooted in any commitment to the enforcement of the law.

For one thing, Eldad was until recently an enthusiastic supporter of the team led by former state attorney Shai Nitzan — the most vociferous champion of the Netanyahu investigations — that tirelessly pursued corruption probes of politicians.

In December, at Nitzan’s retirement party at the Justice Ministry, Eldad delivered this homage to his retiring boss: “In dark days that seemed like a long night, in which law enforcement authorities stood against tremendous forces, you martialed your extraordinary knowledge of the law and went out to fight for the character of this country.”

Is it possible Eldad’s advancement from an economic crimes prosecutor to the acting state attorney had something to do with his apparently flexible professional commitments, or with the fact that he was part of the team of prosecutors that investigated the Harpaz affair in its earliest stages — that is, that he seemed a perfect fit for the campaign launched by Netanyahu after his indictments were announced a month earlier?

The Likud drumbeat didn’t stop with Eldad’s removal from his post on May 1, of course.

On Thursday alone, Likud minister David Amsalem told Army Radio that “based on the tapes” — tapes that Amsalem hasn’t heard — “no one disagrees that Mandelblit is allegedly a criminal. What happened here has to be examined.”

When Blue and White’s Avi Nissenkorn, the new justice minister, responded on Twitter that Amsalem had crossed a “red line” in calling the attorney general a “criminal,” Likud MK Shlomo Karai doubled down.

“The red line was crossed when the attorney general received from you the job of being his own comptroller” — with Eldad’s removal, Mandelblit assumed the role of acting state attorney, and so has the power to keep the recordings under wraps — “and hides behind a great wall of gag orders that you continue to fortify,” Karai charged.

And he vowed: “We will continue to beat this drum, to tell the public about that fact, until Mandelblit… asks to lift the gag order — or goes home.”

Mandelblit believes publicizing 10-year-old evidence in the Harpaz affair opens him up to further political manipulations by a pro-Netanyahu camp bent on undermining his credibility. But it is becoming increasingly clear that failing to do so may have the same result, while preventing those activists and political forces who support the attorney general from speaking forcefully in his defense.

Or as Channel 13 legal analyst and outspoken Mandelblit defender Baruch Kra put it in a May 9 tweet, one day after his colleague Hasson’s revelations, “All the Mandelblit-Ashkenazi tapes must be published, and at their initiative and request. Better to contend once with any criticism that arises from those conversations than to deal for all eternity with the criticism over their concealment. It’s that simple.”

Original: Haviv Rettig Gur -TOI