Netanyahu caught between a judicial rock and a bureaucratic hard place – analysis

The prime minister has been caught in a pincer maneuver by a hostile judiciary and bureaucracy.

By Israel Kasnett, JNS

Israeli Prime Minister Benjamin Netanyahu may be able to claim victory with the recent passage by his government of the first piece of judicial reform legislation, but just a few floors above his office sits the government’s legal adviser, Shlomit Barnea-Fargo.

Netanyahu would like to see her gone, and while there are reports that he has recently tried to have her removed, it wouldn’t be the first time. Unfortunately for Netanyahu, he faces a government bureaucracy and judiciary that harbors hostility toward him, certain members of which want him gone.

Barnea-Fargo, who has served in her position since 2001 under several prime ministers, is currently a state witness against Netanyahu in his ongoing criminal trials. The tension between the two goes back many years, but they have butted heads several times recently.

For instance, in 2018, Barnea-Fargo claimed Netanyahu had treated her with hostility when he denied making purchases for and repairs to his family’s private residence with state funds. In 2019, Netanyahu requested permission from then-Attorney-General Avichai Mandelblit to fire her, but Mandelblit vetoed the request.

In 2021, Netanyahu threatened a lawsuit against Barnea-Fargo following the publication of allegations that he had installed a jacuzzi in his private residence in Caesarea with funds intended for use in the Prime Minister’s Office.

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But however much he might want to, Netanyahu cannot easily fire Barnea-Fargo, and is stuck in what Ran Baratz, a former director of communications in the PMO, calls “a bureaucratic conundrum of sorts.”

Baratz, also the founder of Mida, an online politics and policy magazine, told JNS that Barnea-Fargo “has been very hostile for many years” and is a “political opponent” to Netanyahu.

“It is almost undeniable that she has a double standard,” he said. “She had one standard for former prime ministers Yair Lapid and Naftali Bennett, and a different standard for Netanyahu.”

Netanyahu “would very much like to replace her with someone else but the judicial system in Israel is so autonomous that you can’t do anything,” he said.

While many might think the optics would be bad should Netanyahu replace Barnea-Fargo given her involvement as a witness in his trials, according to Baratz, the opposite is true.

“This is the perfect time to replace her,” he said, since she is a witness in his trial and thus automatically hostile. Should Netanyahu not fire her, it could create the impression that he is trying to appease her in an effort to influence her testimony, “which is worse,” he said.

Baratz also noted that it doesn’t make sense to have someone in the same position for 20 years.

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“There is no organization that operates this way; it is completely inefficient,” he said. “In any bureaucracy, it is a bad idea to have someone doing the same job for so many years.”

According to Baratz, while in theory the government’s legal advisers are subordinate to it, “in Israel, it doesn’t work that way.”

While it is not set in law, “In effect, the government legal adviser is subordinate to the court,” he said. “Every time someone has a problem with them and takes them to court, the court sides with the legal adviser.”

Aim of judicial reform

Remedying this situation is the stated objective of the government’s judicial reform push. One of the things Justice Minister Yariv Levin is seeking to accomplish is to change the nomination system, to grant politicians more power to introduce new blood into the judicial system.

Avi Bell, professor of law at Bar Ilan University and the University of San Diego, told JNS, “Most personnel in government ministries and the prime minister’s office are civil service employees, meaning the ministers can’t hire or fire them.”

He went on to explain that “a very small number of policy positions are defined as ‘positions of trust,’ permitting the ministers to select their own officials.”

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According to Bell, legal advisers such as Barnea-Fargo are not by law considered “positions of trust.” However, there have been several suggestions over the years to define them as such, and proposals to this effect are part of the judicial reform package.

“The problem with having senior policy positions in the ministries defined as civil service rather than positions of trust,” he said, “is that the senior echelons of the ministries often work to advance their own policy preferences and undermine those of the elected minister.”

Baratz explained that Israel’s current attorney general, Gali Baharav-Miara, could implement changes, “but if you think Barnea is hostile to Netanyahu, Baharav-Miara is more so,” he said.

According to Baratz, Netanyahu is surrounded by hostile bureaucratic and judicial systems that want to see him removed from power.

“It’s a pincer movement, coming from both sides,” he said. “On every level, from basic bureaucracy to the judiciary, they are trying to suffocate politicians and deprive them of all their authority as representatives. This is the main issue here.”