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AG said to oppose ordering Netanyahu’s recusal for breaking conflict of interest deal

Attorney General Gali Baharav-Miara has reportedly indicated she is not considering ordering Prime Minister Benjamin Netanyahu to recuse himself from office for violating a conflict of interest agreement by involving himself in the government’s judicial overhaul plan, despite concerns the legislation could benefit him in his ongoing corruption trial.

Baharav-Miara said ordering Netanyahu’s recusal is “not on the table,” and should not be viewed as a “magic solution” after Netanyahu violated the conflict of interest deal he agreed to in 2020, Hebrew media reports said on Tuesday.

While Baharav-Miara last week called for the High Court of Justice to strike down the law, her new reported comments indicated that this was not because it removes her ability to order Netanyahu’s recusal, but rather because she views the legislation as personally tailored to Netanyahu, allowing him to override his conflict of interest deal.

Baharav-Miara also believes that the law, which requires 90 Knesset members to approve the recusal of a prime minister, allows for absurd situations in which a premier must obviously be removed from his position for medical reasons, yet the Knesset will not be able to approve such an action.

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In an extraordinary filing last week, Baharav-Miara requested that the High Court of Justice strike down the law; if her stance is accepted, it would mark the first time the court struck down one of Israel’s quasi-constitutional Basic Laws.

Netanyahu responded by dismissing the court’s authority to strike down Basic Laws, sharpening battle lines in the growing fight over the judiciary. In recent interviews with US media on the government’s reasonableness law — an amendment to Basic Law: The Judiciary and the first overhaul law to pass — the prime minister has repeatedly refused to say whether he would adhere to a ruling in which the High Court of Justice strikes down a Basic Law.

In her filing to the High Court, Baharav-Miara argued that the Knesset misused its authority to pass the March law in order to improve the personal legal position of Netanyahu, who is on trial for graft.

The bill, she pointed out, was submitted to the Knesset just days after petitions were filed against Netanyahu for violating his conflict of interest agreement. She noted that just hours after the legislation was passed into law, the prime minister announced he was directly involving himself in the judicial overhaul agenda.

As such, it was designed specifically to allow Netanyahu to evade the conflict of interest agreement he signed back in 2020, which was authorized by the High Court in order to allow him to continue serving as prime minister.

A Basic Law passed for the personal legal benefit of one individual “contains a serious constitutional flaw,” and the court should invalidate it, wrote Baharav-Miara.

The attorney general argued that the bill should be struck down under the doctrine of “abuse of constituent power,” which allows the court to exercise judicial review on quasi-constitutional Basic Laws if judges believe that the legislation’s purpose is to serve short-term political interests.

“The personal purpose” of the recusal law “led to the design of a governmental arrangement from a narrow and specific point of view in order to obtain a specific goal that has a short-term benefit for a current elected official,” without taking into account the future consequences of such an arrangement, wrote Baharav-Miara in explaining why the court should strike down the law.

The High Court has never struck down a Basic Law and doing so would likely create a severe constitutional crisis between the court and the Knesset.

Jeremy Sharon and Iddo Schejter contributed reporting.