The High Court of Justice’s decision on Monday clearing the way for Maj.-Gen. Roman Gofman to become the next head of the Mossad resolved one immediate question that has hovered over the appointment for months.
Gofman will take office.
What the ruling did not resolve, however, is the broader dispute the case laid bare: who gets to make the final call in Israel’s increasingly contentious system of checks and balances.
That question was on vivid display on Monday as the court rejected petitions against Gofman’s appointment while, 350 kilometers away in Eilat, Attorney-General Gali Baharav-Miara warned that Israel’s democratic guardrails were under unprecedented assault.
The timing was striking.
As Baharav-Miara stood before the Israel Bar Association’s annual conference, warning of efforts to weaken democratic institutions, the very system she was defending was in the process of rejecting her objections to one of Prime Minister Benjamin Netanyahu’s most sensitive appointments.
There was no small irony in that.
“If, in the past, we spoke about democracies falling through small steps, then as the current Knesset’s term approaches its end, a race has begun to dismantle democratic institutions,” Baharav-Miara said. “If, in the past, we were concerned about the weakness of the system of checks and balances in Israeli democracy, today, the concern is even greater.”
Her concern is rooted largely in two bills now advancing through the Knesset. One would split the attorney-general’s position, separating the role of chief legal adviser to the government from oversight of the prosecution system. Another would remove the Police Internal Investigations Department (Machash) from the State Attorney’s Office and establish it as an independent body.
To Baharav-Miara and her supporters, these measures are part of a broader effort to weaken one of the country’s most important checks on executive power.
To supporters of the legislation, however, the bills are a response to a different concern: the extraordinary concentration of authority in the hands of unelected legal officials.
Few figures better embody that debate more than Baharav-Miara herself.
The relationship between the attorney-general and this government has been unprecedentedly contentious from almost the moment the coalition was sworn into office at the end of 2022.
To some Israelis, Baharav-Miara has become the ultimate guardian of democratic norms – the last line of democratic defense – willing to stand up to a government they believe has repeatedly sought to undermine the country’s democracy.
To others, she has become something very different: an unelected official who has used the immense powers of her office to frustrate government policy at nearly every turn and, by extension, thwart the will of the voters who elected that government.
The battle over Gofman inevitably became entangled in that larger debate.
Gofman battle revolves around Elmakayes affair
The case stemmed from the Elmakayes affair, in which Gofman, while commanding the IDF’s 210th Division, was alleged to have approved the use of a minor in an influence operation.
Baharav-Miara argued that the affair raised serious questions regarding his suitability to head one of the country’s most sensitive security organizations.
But before the matter reached the court, it went through another institution established specifically to serve as a check on senior appointments: the Advisory Committee on Senior Civil Service Appointments, headed by former Supreme Court president Asher Grunis.
The committee reviewed Gofman’s candidacy not once, but twice.
After the High Court identified shortcomings in the committee’s initial review and ordered it to conduct additional examination, hear further testimony, and consider additional evidence, the committee revisited the matter and again approved the appointment. Grunis remained opposed, but the majority concluded that no flaw had been found in Gofman’s integrity and that the additional materials reinforced that conclusion.
Yet Baharav-Miara continued to oppose the appointment.
That is where the irony enters the story.
While warning about the erosion of institutional checks, she was simultaneously challenging the decision of one such check.
That does not mean she was wrong to do so; oversight mechanisms are not infallible. Committees can make mistakes. The attorney-general’s job is not to rubber-stamp decisions simply because another body approved them.
But the episode does highlight a central question bedeviling Israeli public life: what constitutes a meaningful institutional check, and whose judgment should ultimately prevail?
The government chose Gofman. The advisory committee approved him. The attorney-general objected. The High Court examined the process and, on Monday, issued its ruling.
Justice Ofer Grosskopf, writing for the majority, concluded that Gofman’s conduct in the Elmakayes affair did not justify disqualifying him from serving as the Mossad’s director. Claims that he knowingly used a minor or abandoned operatives involved in the affair were not supported by the evidence, he wrote. Justice Daphna Barak-Erez dissented, arguing that additional examination was warranted.
But the significance of that ruling extends beyond the fate of one appointment.
The Gofman affair touched nearly every institution now at the center of Israel’s constitutional debate: the government, the attorney-general, independent oversight committees, and the Supreme Court.
It was, in many respects, a case study in how Israel’s system is supposed to function.
Yet it also highlighted how little agreement there is now regarding the relative authority of those institutions.
That theme surfaced repeatedly on Monday at the Israel Bar Association conference in Eilat.
Supreme Court President Isaac Amit warned of a growing campaign to delegitimize the judiciary. Justice Minister Yariv Levin fired back, accusing Amit of showing contempt for large segments of the public and arguing that trust cannot be imposed by judicial decree.
Different issue. Same argument.
Israel debating role of policy-determining bodies
Israel today is not merely debating policy. It is increasingly debating the role and scope of institutions charged with determining that policy and deciding policy disputes.
The government questions the scope of the attorney-general’s authority. The attorney-general challenges government decisions. The judiciary warns that its legitimacy is under attack. The government accuses the judiciary of overreach and, as Levin did on Sunday following a ruling he did not like, rejects judgments. Oversight committees established specifically to review senior appointments find their conclusions challenged.
Israel’s democracy functioned for decades, even without a constitution, because there was broad agreement on the legitimacy and boundaries of the governing institutions.
Governments governed, courts ruled, attorneys-general advised, and oversight committees reviewed. It wasn’t perfect, but it worked because there was general acceptance of the game’s basic rules.
Not everyone liked every decision. But, generally, there was agreement regarding who had the authority to make them.
There no longer is.
The hope is that, whenever the next election comes, it will produce not only a government but also an opportunity to begin rebuilding agreement on the rules of the game.
Not agreement over policy, which is patently unrealistic. But agreement regarding the institutions empowered to make decisions, the limits of their authority, and the obligation to accept their legitimacy, even when they deliver outcomes we dislike.
Democracies can survive fierce policy disagreements. What they struggle to survive is a growing inability to agree on who gets to make the final call.
And that may ultimately be the most important lesson to emerge from the battle over Gofman’s appointment.
