The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Disqualifying Apex Officials Due To Perceived Conflicts Of Interest
In Israel and in the United States.
During the Trump administration, critics argued at almost every step that the president faced some conflict of interest. Critics claimed that virtually every action that Trump took was not really in the public interest, but was designed to pursue some improper purpose.
- Consider the "abuse of power" claim in the first impeachment trial. The article of impeachment claimed that Trump threatened to withhold aid from Ukraine as a way to pressure Ukraine to harm Hunter Biden, and by extension, Joe Biden. Trump countered that he was exercising his foreign policy to promote the public interest as he saw it. (I expressed these sentiments in the New York Times.)
- When Trump made appointments to the Supreme Court and lower courts, critics charged that the President was in fact installing activists who would rubber stamp Trump's abuses of power. Trump argued that he was exercising his constitutional authority to nominate judges. In hindsight, the Trump judges consistently ruled against Trump.
- When Trump fired Comey, and threatened to remove Mueller, critics argued that he was trying to obstruct investigations of Trump. Trump countered that these officials were engaging in abusive practices, and he was trying to promote the fair administration of justice.
- When Trump issued pardons to his acolytes, some critics argued that the pardons were a way to obstruct investigations into Trump. Trump, on the other hand, claimed that he used these pardons to redress an abuse of prosecutorial discretion. And so on.
In our system of of government, the president is an apex official. No other government official presides over him, and can control his actions. No one can force the president to veto a bill, negotiate a treaty, or appoint a cabinet member. Rather this elected official is accountable only to the people.
Israel, however, is a very different story. At least under the current rules, the position known as the Attorney General does not actually represent the views of the incumbent government. Indeed, the Prime Minister does not have the power to unilaterally appoint or remove the Attorney General. Rather, the Attorney General serves a six-year term that can stretch across multiple governments. (And in recent times, governments are averaging about two years.) The Prime Minister can only select an Attorney General from a list selected by a committee that is chaired by a former Supreme Court Justice. Moreover, the Attorney General can assert the position of the "Israeli government" in court, even where the elected "Israeli government" disagrees. During the Trump years, many critics argued that the Attorney General should be truly independent from the president. Israel is perhaps a shining example of what such independence looks like.
Unless you've been living under a rock, you are aware of the current debates in Israel over judicial reform. I won't go through the specifics here, but you can read my broad thoughts in the Wall Street Journal. Here, I want to focus on one aspect of this debate that has been given little attention.
At present, Benjamin Netanyahu is the Prime Minister, and the leader of the majority party. The most significant issue facing Israel is judicial reform. Indeed, his fragile coalition formed, in large part, around the judicial reform issue. Given these facts, one would think that Netanyahu's leadership on the matter would be essential. But Netanyahu, unfortunately, was disqualified from taking any action on judicial reform.
How could that be? The Attorney General ruled that Netanyahu was disqualified from participating in the judicial reform debate. Why? Netanyahu is facing a long-standing court battle over alleged corruption. And, the argument went, Netanyahu may pursue rule changes that could affect his personal court case. Thus, the Attorney General argued, and the Israeli Supreme Court agreed, that Netanyahu had to recuse from the most important political issue of the day. Again, in Israel, the Supreme Court can halt any action it deems "unreasonable," including the Prime Minister exercising the powers as Prime Minister, and as political leader. Immediately after the coalition formed, the "independent" attorney general and the Supreme Court decapitated the apex official in Israel.
So the parliament pushed back. Last week, the Israeli parliament passed a law that prohibited the courts from declaring the prime minister unfit for office. The law somewhat-resembles the 25th Amendment.
Under the law, which amends the Basic Law on Government, there are only two ways to declare a prime minister unfit. The first is the prime minister declaring himself physically or mentally unfit to fulfill his role, and the second is a cabinet declaration of his unfitness due to health issues backed by three-quarters of the ministers.
The courts would no longer have a role in disqualifying the prime minister due to some perceived conflict of interest. I'm sure the Israeli Supreme Court will declare this law unconstitutional.
Anyway, after that law passed, Netanyahu stepped into the judicial reform debate. His speech reflects his new powers:
"Until today my hands were tied. No more. I enter the event, for the sake of the people and the country, I will do everything in my power to reach a solution and calm the spirits in the nation,"
How did the Attorney General respond? By asserting her own supremacy over the duly-elected party leader:
"Last night you publicly announced that you intend to violate the ruling of the Supreme Court and act contrary to the opinion of the legal advisor to the government," she wrote. That statement, she said, "is illegal and contaminated by a conflict of interest."
"As a Prime Minister indicted with crimes, you must refrain from actions that arouse a reasonable fear of a conflict of interest between your personal interests in the criminal proceedings and your role as Prime Minister," she wrote to him.
This statement could have been copied from the various attacks on Trump. Always, the elites know what is really in the public interest, versus what is in the parochial personal interests of an elected apex official.
When you see the chaos emerging in the streets, and blame Netanyahu, remember that until recently, he was recused from the issue. And why was he recused? Because of the very judicial supremacy that the government was trying to reform. What a mess.
