Attorneys General–institutions matter

Now that indictments have been announced against the (outgoing–dare I say?) Prime Minister of Israel, it is worth reviewing the institutional basis of the office of Attorney General in Israel.

I am seeing some casual takes on Twitter about why the US doesn’t have an Attorney General who takes a tougher line against law-breaking at the top of government. But the offices could hardly be more different. The US Attorney General is a cabinet appointee. The President picks who holds that position, subject only to Senate majority confirmation. Of course, Trump has had a highly compliant Senate majority throughout his presidency.

Trump could not have had occupants of the office that have been as awful for the rule of law as they have been, if the office were structured like Israel’s. So it is worth sketching how the process of appointing the Israeli Attorney General works. My source for this is Aviad Bakshi, Legal Advisers and the Government: Analysis and Recommendations, Kohelet Policy Forum, Policy Paper No. 10, February 2016.

a. There shall be formed a permanent selection committee that shall screen suitable candidates, one of which shall be appointed to the position by the government. The term of each committee shall be four years. 

b. The chairman shall be a retired justice of the Supreme Court who shall be appointed by the President (Chief Justice) of the Supreme Court upon the approval of the Minister of Justice, and the other members shall be: a retired Minister of Justice or retired Attorney General appointed by the government; a Knesset Member elected by the Constitution, Law and Justice Committee of the Knesset; a scholar elected by a forum comprising deans of law schools; an attorney elected by the Israel Bar Association. 

c. The AGI term duration shall be six years, with no extension, irrespective of the term of the government. 

d. The government may remove the AGI from his position due to specific reasons.… These reasons include, in addition to personal circumstances of the AGI, disagreements between the AGI and the government that prevent efficient cooperation. In such an event the selection committee shall convene to discuss the subject and shall submit its opinion to the government, in writing. However, the opinion of the committee is not binding, and the government may decide to remove the AGI contrary to the recommendation of the committee. The AGI shall have the right to a hearing before the government and before the committee. 

All of this makes for a reasonably independent office. Even if appointment and dismissal are still in the hands of the government, the screening and term provisions make it an arms-length relationship. The occupant of the post is obviously not a cabinet minister, as in the US, and is not a direct appointee of the head of government or the cabinet.

Worlds apart, institutionally.

And this is even before we get into the parliamentary vs. presidential distinction. A president is–for better or worse–meant to be hard to indict, let alone remove. That’s why the main tool against a potentially criminal executive in the US and many other presidential systems is lodged in the congress, through impeachment, and not in a state attorney. A prime minister in a parliamentary system, on the other hand, by definition has no presumption of a fixed term.

The normal way to get rid of a PM is, of course, a vote of no-confidence or the PM’s own party or coalition partners withdrawing support. But that’s the point–they are constitutionally not protected when the political winds, let alone the legals ones, turn against them.

In the broader institutional context of a parliamentary system, it is presumably much easier to take the step of also designing an independent Attorney General’s office that has the ability to indict a sitting head of government.

On the other hand, there is still no obvious way to remove Netanyahu from office any time soon, unless his own party rebels against him. Even though Trump’s own party will probably block the super-majority in the Senate needed to remove him from office*, the resolution of the case against Trump might happen considerably sooner than any resolution of Netanyahu’s case. Barring a rebellion by his current allies, Netanyahu may remain PM fore another 4-5 months, through a now-likely third election (since last April) and the post-election coalition bargaining process.

* Assuming the House majority impeaches him, which now looks all but inevitable.

20 thoughts on “Attorneys General–institutions matter

  1. The US has 51 attorneys-general. Only 8 are appointed by the chief executive subject to legislative confirmation. Of the governor of California can live with an attorney-general they do not appoint or remove, it’s not obvious why the president of the United States cannot.

    Recent constitutions, in both parliamentary and presidential regimes provide for the independent office of Director of Public Prosecutions who exercises the traditional prosecutorial functions of an attorney-general. Maureitius is one example, but we could also point to South Africa, Kenya, Namibia, and Fiji. Statutory versions of the DPP exist in Britain, Australia, Canada and all Australian states.

    72. DIRECTOR OF PUBLIC PROSECUTIONS

    1. There shall be a Director of Public Prosecutions whose office shall be a public office and who shall be appointed by the Judicial and Legal Service Commission.
    2. No person shall be qualified to hold or act in the office of Director or Public Prosecutions unless he is qualified for appointment as a judge of the Supreme Court.
    3. The Director of Public Prosecutions shall have power in any case in which he considers it desirable so to do
    a.to institute and undertake criminal proceedings before any court of law (not being a court established by a disciplinary law);
    b.to take over and continue any such criminal proceedings that may have been instituted by any other person or authority; and
    c.to discontinue at any stage before judgment is delivered any such criminal proceedings instituted or undertaken by himself or any other person or authority.
    4. The powers of the Director of Public Prosecutions under subsection (3) may be exercised by him in person or through other persons acting in accordance with his general or specific instructions.
    5. The powers conferred upon the Director of Public Prosecutions by subsection (3)(b) and (c) shall be vested in him to the exclusion of any other person or authority:
    Provided that, where any other person or authority has instituted criminal proceedings, nothing in this subsection shall prevent the withdrawal of those proceedings by or at the instance of that person or authority at any stage before the person against whom the proceedings have been instituted has been charged before the court.
    6. in the exercise of the powers conferred upon him by this section, the Director of Public Prosecutions shall not be subject to the direction or control of any other person or authority.
    7. For the purposes of this section, any appeal from any determination in any criminal proceedings before any court, or any case stated or question of law reserved for the purposes of any such proceedings to any other court, shall be deemed to be part of those proceedings:
    Provided that the power conferred on the Director of Public Prosecutions by subsection (3)(c) shall not be exercised in relation to any appeal by a person convicted in any criminal proceedings or to any case stated or question of law reserved except at the instance of such a person.

    • The problem with having an ‘independent’ federal Attorney-General is that AIUI the US Attorney-General has considerable policy-making powers (that in Israel are presumably in the hands of the Minister of Justice) and putting all those powers into the hands of an independent official seems like either a recipe for unaccountable technocracy or the undermining of another independent process. If you were to go with the model used in most states (which I believe is direct election?) you’d have an A-G who could be just as partisan as anyone appointed by the President.

      • The duties of the Israeli attorney-general are much more like a DPP than a minister of justice. As in other countries with a justice minister/attorney-general and an independent DPP prosecution policy is either adopted by law or negotiated between the minister and the DPP. In NSW, for example, the DPP issues prosecution guidelines with the consent of the attorney-general.

        If the US federal attorney-general was independent of the president that would not, you are right, guarantee that the attorney always acted nonpartisanly. It would, on the other hand, be a step towards a Madisonian distribution of powers rather than the very unMadisonian doctrine of the unitary executive that now prevails.

        And as an afterthought, as in most states with elected attorneys-general, it would provide an extra elected officer to function as second-in-line to the presidency after the vice-president.

    • Yes, the independence of prosecution offices cuts across the parliamentary-presidential divide. My point was that such an office–and empowering it to investigate the sitting head of government–sits more logically in the overall constitutional design of parliamentarism than presidentialism. I believe that would stand up to empirical study, but it is mostly a hypothesis. I published one chapter about this many years ago, but never followed it up with further research. And I doubt I ever will. One career is too short!

      As for the states attorneys general in the US, point taken. But I hope it was obvious I was talking about national-level institutions.

  2. A mild protest against MSS’s use of the Grocer’s Apostrophe in the blogpost title. This was not one of the areas in which Noah Webster led Americans into ongoing spelling erro[u]r, so our host has no excuse. Alan, second me here.

    • I would eagerly second you, except that I mistyped ‘If the governor of California can live with an attorney-general’ as ‘Of the governor of California can live with an attorney-general’ so i think it best to void all orthography issues for the moment.

      • The attorney general of California can be appointed by the governor if they resign, die, or if the office is vacant. Why do US states have separately elected executive positions? Do voters split the executive positions by party or all posts are won by the same party?

    • That was not me, it was auto-“correct”. I retain responsibility for not noticing the transformation. But it was the blog software (or my computer) that somehow thought an apostrophe belonged there. Anyway, I corrected it. Before I saw Tom’s comment (in case that fact matters as much to anyone else as it does to me).

      • Alan, MSS can edit the blog. You can’t…
        in Dutch (correct me if I’m wrong), foreign-origin nouns have plurals ending in apostrophe-S, but normal gentives are just plain S?
        Australia removed apostrophes from all place names a few years ago to avoid confusing emergency responders[‘] GPS navigation. So eg we’d have “Marthas Vineyard” if we had it down under..

  3. The position of Attorney General in Israel is a matter of much debate. As it stands, the AG’s title in Hebrew translates to “the Legal Counsel to the Government”. The AG has the authority to interpret the law for the government and as long as his interpretation is not overturned by the courts, it is binding on the government so in a way he has a veto power over decisions, by simply saying “this is not legal for you to do”. There exists also a separate position of State Prosecutor who heads the state’s prosecution service (probably equivalent to DPP) but he is subordinate to the AG. There has been not a few politicians who have sought to separate the positions of State Prosecutor from that of the AG/Legal Counsel to the Government – but thus far and facing strong opposition from past and present AGs and past supreme court judges (some of them also former AGs) none have actually did it.

    Another interesting point with regards to the parliamentary/presidential divide is that Israel once had – 96′-01′ – a sort of semi-presidential system, whereby the PM was elected directly by the voters in personal elections (while still needing the confidence of the Knesset to form the government). [Pardon the probably incorrect use of the professional term here, for lack of a better definition for this unique, and failed, system]. Then, the PM’s position was term limited to 2 terms, Since the PM was popularly elected and was also term-limited, it was also decided that the PM would not be removed from office for being indicted, unless and until he was convicted in a final judgment. This feature was somehow retained when the system reverted back to a pure parliamentary one. Netanyahu now claims – with the support thus far of his party and other right-wing parties, that he can continue in office for years until the trial is over (including appeals). His opponents point to the fact that Netanyahu himself argued that former PM Ulmert could not carry on his position when he was facing criminal charges. Fun times to be a constitutional scholar of political scientist in Israel…

    • Another point of law – the Supreme Court has decided many years ago that the PM MUST dismiss a minister if he is indicted with serious crimes, even though the law actually states that a monister must be removed only when found guilty.
      The question everyone now asks is how do this decision impacts a PM who is indicted for serious crimes. The CW is (but this is in no way indicative of how the court would actually decide) that this precedent does not apply to a sitting PM – i.e. he can continue in office until a final judgement. This is not only because of the specific language of the law – which the court has worked around in the case of ministers – but because of the PM special status, whereby his removal necessarily means the removal of the cabinet.
      BUT there is also debate on whether being indicted – while not necessitating the PM to resign – would bar a person – sitting PM or not – from forming a new government.
      If this would be the decision of the AG and the Supreme Court, Netanyahu would be a lame-duck so to speak because he will not be able to form a new government, and the current government is only a care-taker one waiting for a new one to be formed after elections (the ones we had or the ones to come).
      As I said in the previous comment – a paradise for constitutional scholars.

      • I have seen that there is a legal opinion stating no one can form a new government while under indictment. But what law is that opinion based on?

        Yes, paradise!

    • The Israeli system of direct election was indeed a hybrid, but not semi-presidential. The latter term applies to the popular election of the head of state, but with the government headed by a prime minister who is subject to majority confidence. The Israeli innovation was to make the head of government directly elected, while still subject to confidence.

      I have written a little bit about this, and I share the consensus among political scientists that it was a debacle. It is also interesting to note that before 1996, it was Israeli constitutional lawyers who advocated this. The political science community was pretty much unanimous that it would work out badly.

  4. At the federal level, the USA for a while had “special counsel” prosecutors who were appointed temporarily but who were independent of the administration.

    Also, the federal government runs various police forces, somewhat in contravention of the separation of powers but probably inevitable once you create a federal district, federal territories, federal reservations, federal parks, and federal armed forces. At least one of these, the Federal Bureau of Investigation, still is under the Department of Justice. If you want an independent federal attorney general, transferring the FBI and any other federal police functions to Homeland Security should happen beforehand.

    • Yes, the Special Counsel (and the more recent “independent counsel”, as in Mueller) is an interesting workaround, attempting to establish an autonomous prosecution for specific instances.

      Note, however, that Mueller and others have held to the opinion that the occupant of such a post lacks the authority to indict (or formally request an indictment of) a sitting President.

  5. There’s a good recent example of a sitting President being indicted by an independent prosecutor in a presidential country: former Brazilian President Michel Temer was indicted twice in 2017 by Attorney General Rodrigo Janot, appointed by his predecessor Dilma Rousseff, and once in 2018 by Attorney General Raquel Dodge, appointed by himself. However, the Brazilian Constitution requires a vote of 2/3 of the lower house to authorize the indictment to be brought to the Supreme Court, and the government was easily able to win the vote in the first two cases (the last indictment was brought only a few days before he left office, so it was of no practical effect).

    I’d dispute the idea that independent prosecution offices are empirically more prevalent in parliamentary systems than in presidential ones. Most Latin American countries have independent prosecutors (Mexico, which was one of the exceptions, got one in 2018), while many parliamentary and semi-presidential countries in Europe and elsewhere subordinate prosecutors to the Ministry of Justice (France, Germany, Austria, Belgium, the Netherlands, Poland, Japan, etc). If I’m not mistaken, the Director of Public Prosecution in many Westminster system countries such as Canada and Australia is also subordinate to the Attorney General, so it’s not a fully independent position (although there’s certainly a greater degree of autonomy than in many other countries).

    • What I was asking is whether prosecutors (attorneys general, etc.) can indict a sitting head of government without consent of the legislature. Based on Gabriel’s comment, the Brazilian one can’t, and in fact it takes a super-majority to authorize it (i.e., harder than impeachment in the US). What about these others in presidential systems? I am also not sure which of those in parliamentary systems have this authority, aside from the Israeli case we are seeing unfold right now.

  6. There was actually a minor scandal in Canada last year when it was revealed that the attorney general resisted pressure from the Prime Minister’s office to stop a prosecution of a company that had contributed funds to the governing party. The attorney general and her leading supporter in the cabinet were sacked, though the publicity was bad enough that as of now the prosecution was still going forward.

    • Yes. Of course, the Canadian post is more vulnerable to pressure from the head of government–ultimately to the office-holder being sacked–on account of its being a cabinet post. That does not mean that actual exertion of such pressure can’t be a political problem.

      • In most parliamentary and semipresidential systems the head of government does not have civil or criminal immunity. Herads of government who are also MPs may enjoy parliamentary immunity but that is generally much more limited.

        Even in presidential systems, head of government immunity is not universal. Presidential criminal immunity in the US rests on a Nixon-era opinion of the Office of Legal Counsel and has never been tested in the courts.

        Indicting a non-immune head of government is much less constitutionally and politically complicated. Elizabeth II may be literally above the law, but it’s open slather on Boris, Justin, etc etc.

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