1. Introduction
Democratic backsliding scholarship has highlighted the phenomenon whereby hybridisation of the state occurs not through violent meansFootnote 1 but through legal mechanisms.Footnote 2 Related research on constitutional change has demonstrated how this process involves the use of parliamentary majorities to enact anti-democratic legislation and effect constitutional replacement,Footnote 3 emphasising the centrality of democratic institutions and legal actors – above all, courts – in preventing or delaying such processes.
The rise of democratic backsliding has also had a significant impact on constitutional judicial review. In addition to their traditional roles, courts have increasingly assumed a positive and normative function: safeguarding the basic constitutional structure and, at times, democracy itself. Much of the literature on judicial review in this context focuses on salient cases in which legal actors openly defend democratic principles.Footnote 4 In Israel, for example, the government’s proposed constitutional overhaul in 2023 faced significant opposition, culminating in a landmark Supreme Court decision declaring a constitutional amendment unconstitutional – an unprecedented ruling, which protected the basic structure of the constitution and its democratic foundations and which many regarded as a democratic victory.Footnote 5
However, prominent judicial precedents cannot fully illuminate the broader landscape within which processes of democratic backsliding emerge – and, at times, are restrained. This is because the phenomenon extends far beyond what is captured in the judicial space. In this sense, scholarship on the role of law during democratic backsliding reproduces a familiar bias found in earlier researchFootnote 6 – namely, a tendency to treat developments within the courts rather than those unfolding, for example, within the executive branch. For instance, relatively little attention has been paid to the more complex institutional dynamics that occur ‘in the shadow of the law’Footnote 7 in the interactions between populist leaders and legal gatekeepers that can also affect political, not legal, norms, despite the fact that in practice, such interactions (for example, between the country’s Attorney General’s office and the populist leader) occur very frequently. Little is known about the interactions between government lawyers and populist practices within the executive branch, and there is no well-developed research on how they respond to its aggrandisement.Footnote 8
This article presents an Israeli case study that illustrates a phenomenon we term ‘contracting around democratic backsliding’. Such situations typically arise before the state has descended into full authoritarianism, at a stage when legal veto players and other institutional players still retain some capacity to confront the populist ones. The risk of democratic backsliding is evident, yet neither the political nor the legal side is willing to engage in direct constitutional showdowns.Footnote 9 Instead, both sides attempt to reach understandings and agreements intended to anticipate democratic deterioration. In such circumstances, efforts to negotiate legal accommodation with populist leaders – motivated by a desire to avoid constitutional showdowns – ultimately contribute to the erosion of political normsFootnote 10 and the gradual normalisation of extremist leadership. Contracting around democratic standards, while simultaneously seeking to constrain the populist through legal oversight, paradoxically provides validation and legitimation of the populist project of norm-breaking and entrenchment. Although such a ‘consensual approach’ is seen as one that can moderate the entrenchment process or achieve democratic gains, the risk it entails is the strategic strengthening of the populist leader.
Rather than merely examining court rulings, this article examines legal agreements negotiated within the executive branch between the Netanyahu government and the Attorney General’s Office in Israel (AG) during the period 2020 to 2026. In Israel, the AG serves as the authoritative interpreter of the law for the government, in so far as the courts have not ruled otherwise. Within this capacity, the AG will, in most cases, defend the government’s position before the courts. However, in some instances, such defence is conditioned upon prior agreements or understandings reached between the AG and the government, whereby the latter undertakes to act in accordance with the law as interpreted by the Attorney General; only thereafter does it receive legal representation.Footnote 11 This article examines such situations – here termed the ‘consensual approach’ – which are fundamentally distinct from cases in which the AG position is in line with the government without qualification or opposes it in an adversarial manner.
Accordingly, the second part analyses three situations, between 2020 and 2026, in which the AG’s Office, via the Israeli Office of Legal Counsel (OLC), reached Memoranda of Understanding (MOUs) with Netanyahu’s government:
(1) a 2020 ‘conflict-of-interest agreement’ between the OLC and Netanyahu following his re-election while his criminal trial was ongoing;
(2) a 2024 MOU between the OLC and the Minister of National Security, Itamar Ben-Gvir, negotiated after a petition demanded his removal from office;
(3) a 2025 legal arrangement approving Netanyahu’s nominee for head of the Israeli intelligence agency, conditioned on the appointee’s commitment to avoid involvement in ongoing investigations against Netanyahu’s office.
In each instance, the AGFootnote 12 faced a dilemma: whether to pursue constitutional showdowns in court or to negotiate accommodation ‘in the shadow of the law’. In all three cases, existing constitutional law provided plausible (though not trivial) grounds for challenging these appointments, but uncertainty prevailed as to how the Supreme Court would rule. In all three cases, the OLC chose to validate the appointments, thereby waiving constitutional claims that might have blocked them, and instead contracted with the appointees through MOUs intended to limit their powers.
After reviewing the three MOUs in Section 2, the article analyses the implications of this reliance on MOUs (Section 3). Our claim is that the practice of relying on MOUs undermined the likelihood that the Supreme Court would articulate and enforce a clear constitutional standard. At the same time, it strategically strengthened Netanyahu’s government, enabled an increasingly extreme appointments strategy and, most importantly, conferred a legitimacy that facilitated the political system’s retreat from political norms that had previously structured Israel’s democratic discourse (first and foremost, that a Prime Minister who has been indicted cannot serve).
2. Contractual accommodation in three constitutional conflicts
Israel’s mechanisms for checking and balancing executive power are considered to be limited, with the Supreme Court serving as the primary balancing institution. Since the 1990s, the Court has been perceived as a central agent for embedding constitutional values and strengthening oversight of executive authority.Footnote 13
An important mediator of the Court within the executive branch is the AG who, in Israel, operates with significant centralisation, embedded in the AG role and personality, and enjoys considerable independence from the government’s political control. The Israeli AG is a professional, non-partisan public servant whose institutional role encompasses four distinct functions: (i) heading the criminal prosecution; (ii) serving as the exclusive and binding legal counsel to the executive branch (in this role, the AG can also use consensual strategies); (iii) representing the state before the courts; and (iv) protecting the public interest. In a constitutional system that lacks a formal written constitution, operates with a unicameral legislature, and maintains no rigid separation of powers, the AG serves as a critical internal check on executive action, often described as a ‘gatekeeper’, ensuring that governmental conduct remains within the bounds of the law. A key feature of the Israeli model, distinguishing it from the politically appointed AG in the United States, is that the AG’s legal opinion is regarded as bindingFootnote 14 on the executive branch unless the Court rules otherwise. This principle developed through the recommendations of the Shamgar Commission,Footnote 15 which was convened to discuss the structure and composition of the AG’s powers in the late 1990s, the decisions of which were adopted by Israeli governments until 2023 and have been upheld consistently in Supreme Court jurisprudence.Footnote 16 Throughout the years, the AG has been instrumental in combating governmental corruption, wielding prosecutorial powers while establishing ethical and legal standards that can disqualify officials from public service.Footnote 17 Whether one accepts this institutional structure or criticises it,Footnote 18 there is little disagreement in the research that these institutions are the only mechanism for the separation of powers that exists in Israel, unlike many other democracies.
Over the past decade, there has been a gradual process of delegitimisation targeting the Court and the AG – a process that, beginning in 2023, has intensified into democratic backsliding and a prominent attempt to capture these institutions.
The institutional significance of the AG has been thrown into sharp relief under the governments of Benjamin Netanyahu, Israel’s longest-serving Prime Minister. In November 2019, Attorney General Avichai Mandelblit indicted Netanyahu on charges of bribery, fraud, and breach of trust across three cases – making him the first sitting Prime Minister to face criminal charges. The trial began in May 2020 and remains ongoing, with Netanyahu’s cross-examination continuing into early 2026. Netanyahu has denied all charges and characterised the prosecution as politically motivated.Footnote 19 The fact that a sitting Prime Minister simultaneously heads the executive branch and stands trial in proceedings overseen by the AG’s office has generated unprecedented tension between the government and the legal establishment.
Since 2023, Israel has been described widely as undergoing an accelerated process of democratic backsliding.Footnote 20 Much like developments observed in other jurisdictions, the current Netanyahu government has pursued a concerted effort to capture key formal constitutional institutions – most notably the judiciary and the AG – which traditionally function as checks on executive power. The starting point that led Israel from a creeping constitutional crisis to a democratic crisis was on 4 January 2023,Footnote 21 when the Minister of Justice presented an unprecedented reform package to the Basic Laws, each of which is already considered a far-reaching constitutional reform. The government’s ambition was to pass the entire reform package on a quick schedule.Footnote 22 In a volume devoted entirely to the 2023 reform, Navot conducts a basic comparative discussion, which reviews the 2023 reform against the background of literature on democratic backsliding, and compares the status of the proposed reform proposals – on the formal and informal level – between Israel, Hungary and Poland.Footnote 23 Roznai, Dixon and Landau began to characterise the Israeli case even as ‘abusive constitutionalism’.Footnote 24
It should be noted that this process unfolds against the backdrop of an incumbent Prime Minister facing criminal prosecution, and part of the public and legal struggle concerns the criminal proceedings against Netanyahu, as well as the AG’s behaviour in this area, as the criminal prosecutor general.Footnote 25
Since 2023, this tension has translated into a sustained political assault on the current Attorney General, Gali Baharav-Miara. Netanyahu’s coalition has advanced legislative initiatives aimed directly at the office, including a proposal to render the Attorney General’s opinion non-binding on the executive and ongoing efforts to split the role into separate positions.Footnote 26 Senior cabinet ministers have publicly denounced Baharav-Miara, accusing her of acting as an arm of the political opposition and of systematically obstructing the government’s agenda. These accusations culminated in August 2025, when the government voted unanimously to remove Baharav-Miara after unilaterally replacing the established professional dismissal procedure with a committee composed entirely of government ministers.Footnote 27 The High Court of Justice (HCJ) annulled the removal unanimously in December 2025, ruling that the new procedure lacked legal justification.Footnote 28
Much of the scholarly literature on Israel’s constitutional crisis has focused on confrontations, either between the government and mass protest movements or between the executive and the judiciary. Some of these confrontations have ultimately led to landmark Supreme Court rulings. Relatively little attention has been paid to areas of convergence and consent between legal veto players and the government. Cases in which the AG and the government have reached agreement remain unexplored, a gap this analysis seeks to address by examining three illustrative case studies. Situations of this kind, characterised by convergence and consent between the AG and the executive political core, are no less important (and arguably, even more so) for understanding the climate and evolution of law and politics during periods of democratic backsliding. This is because, in such circumstances, it is precisely the alignment between the political and legal echelons that generates the new political and legal norms that develop within the backsliding process. In Israel, this dynamic is particularly significant, inter alia, because the AG’s legal position is binding on the executive branch and, moreover, it serves as a powerful signal to the courts regarding the content of the law as understood by the AG. Often, it is the AG (not the court) who determines the constitutional boundaries against populist attempts to break them entirely.
This lacuna is particularly salient with respect to the patterns of agreement that have emerged in recent years between the AG and successive Netanyahu governments concerning appointments and staffing within the executive branch. At this juncture, we seek to analyse three case studies: beginning with the constitutional law norm-setting surrounding Netanyahu’s own tenure; continuing with the legality of the tenure of the most extreme minister in his government; and, subsequently, the near-personal appointment of the head of the intelligence services. All three cases reached the AG's office well before they were subject to judicial review. In each instance, the AG arrived at a consensual understanding that resulted in adopting legal positions supporting all three appointments. Since the AG’s office has become the most immediate check against the attempts of current governments to entrench their power,Footnote 29 we claim that a pattern has emerged whereby the relationship between the AG and elected officials within the government has become the focal point of both political and social conflict, and that the legal as well as the political norms created by the agreements in the three case studies are actually no less important than the constitutional precedents that the Court has established in recent years regarding the protection of democracy.
2.1. The ‘Conflict-of-Interest Agreement’ between the OLC and Netanyahu
Prime Minister Netanyahu was indicted on charges of bribery, fraud, and breach of trust in three separate cases. Shortly thereafter, elections were held, after which it became apparent that Netanyahu would head a unity government formed against the backdrop of the coronavirus outbreak.
In Israel, the constitutional question of whether a criminally indicted elected Prime Minister may assume or remain in office has long been characterised by legal controversy and doctrinal ambiguity. On the one hand, Israeli jurisprudence had developed a well-established rule requiring a government minister who has been formally indicted for serious offences to resign – a principle that had previously precluded such individuals from assuming ministerial office.Footnote 30 Yet uncertainty persisted as to whether this doctrine extended to an incoming Prime Minister who, unlike cabinet ministers, is not politically appointed but instead derives democratic legitimacy more directly from the electoral process.
Despite this constitutional indeterminacy, the Israeli political system had nevertheless adhered – both in the public discourse and in political practice – to a widely accepted political norm that an indicted Prime Minister cannot legitimately serve.Footnote 31 This norm seemingly emerged in the mid-2000s and reached its apex in 2009, when Prime Minister Ehud Olmert resigned following the filing of an indictment against him, thereby strengthening the perception that criminal indictment renders a sitting Prime Minister politically illegitimate. Further evidence of the vitality of this norm is the fact that Benjamin Netanyahu, who served as opposition leader during Olmert’s tenure, also called for his resignation following the indictments, stating that ‘a prime minister who is up to his neck in investigations lacks the moral and public mandate to make such fateful decisions for the State of Israel’.Footnote 32 Accordingly, when Netanyahu was re-elected in 2020 under the fog of a pending criminal indictment, the legal system confronted the question of whether to formally adopt a constitutional position that would preclude him, as a matter of law, from entering office.
Subsequently, petitions were filed with HCJ seeking to prevent Netanyahu from being tasked with forming the government while facing criminal charges. The AG at the time, Avichai Mandelblit, played a pivotal constitutional role in responding to the petitions, as the AG’s legal interpretation in such high-stakes cases sends a powerful signal to the Court concerning the trajectory of constitutional doctrine. The AG eventually elected to defend Netanyahu’s appointment, advancing a legal interpretation that the doctrine that required indicted ministers to resign does not apply to an incoming Prime Minister, whose constitutional standing is distinct from that of ordinary cabinet members. However, this supportive interpretation was not unconditional.
Rather, the AG conditioned his position on Netanyahu’s acceptance of an exceptional conflict-of-interest arrangement, which would prohibit him from involvement in a range of policy areas, most notably those concerning constitutional and administrative reforms as well as senior appointments within the law enforcement apparatus. Accordingly, the AG’s defence before the HCJ was premised explicitly on Netanyahu’s agreement to institutional constraints that curtailed his executive discretion.
The petitions were heard by an expanded panel of 11 justices and were unanimously rejected.Footnote 33 Rather than issuing a definitive constitutional ruling that would categorically bar an indicted Prime Minister from assuming office, the HCJ adopted a restrained approach. In a landmark decision rendered in 2020, the Court acknowledged the gravity of the charges against Netanyahu but declined to disqualify him outright. In their reasoning, the justices cited the absence of an explicit constitutional provision addressing the eligibility of an indicted Prime Minister, acknowledging that the relevant Basic Law provision requires a final conviction for termination of tenure, and chose to refrain from imposing additional constitutional obligations beyond this norm.
The Court endorsed the AG’s alternative mechanism, conditioning Netanyahu’s continued tenure on his adherence to a binding conflict-of-interest arrangement negotiated with the AG, which would establish ‘restrictions regarding the performance of his duties in matters relating to the law enforcement system’.Footnote 34 In doing so, the Court effectively substituted a constitutional showdown with a negotiated administrative compromise, allowing Netanyahu to assume office while attempting to safeguard the integrity of the legal system.
Later that year, the AG formulated an opinion arrangement, stipulating that Netanyahu must refrain from dealing with ‘any matter that has a substantive connection to the trial or to matters being adjudicated therein’.Footnote 35 Specifically, the arrangement prohibited Netanyahu from being involved in various areas in which concerns about conflicts of interest might arise, such as the activities of the Judicial Selection Committee regarding judges of the Supreme Court and District Court, legislation with potential impact on the criminal proceedings against Netanyahu, and decisions concerning appointments within the law enforcement system (which includes the Government Legal Advisory apparatus, the State Attorney’s Office, and the Israel Police). Although Netanyahu subsequently claimed that the AG lacked the authority to impose such binding restrictions,Footnote 36 the HCJ later held that the arrangement is binding and lawful, as it gives effect to the principle that Netanyahu must refrain from actions that raise a reasonable apprehension of conflict between his personal interests arising from the criminal proceedings and his official duties.Footnote 37
Since then, Netanyahu has violated the arrangement on various occasions. The most prominent example occurred during the constitutional ‘Reform’ of 2023, when Netanyahu publicly declared he was ‘entering the constitutional event’ and would be involved in reaching a compromise regarding the legislation.Footnote 38 The AG clarified that this violated the HCJ ruling and the arrangement.Footnote 39 A motion to enforce the arrangement was filed and, over the following years, several petitions seeking to terminate Netanyahu’s tenure based on alleged violations of the arrangement were also rejected.Footnote 40
This approach, adopted by the AG and subsequently endorsed by the Court, calibrated the constitutional equilibrium. It implicitly recognised the constitutional legitimacy of an indicted Prime Minister while substituting categorical constitutional disqualification with administrative constraints negotiated through a MOU. Once Netanyahu’s tenure was legally legitimised, the pre-existing political norm began to erode as well. The position of the right-wing bloc led by Netanyahu underwent a radical transformation, embracing a narrative according to which an indicted Prime Minister may legitimately remain in office throughout the duration of the criminal proceedings and any subsequent appeal.
The AG’s reliance on negotiated MOUs as a mechanism for ‘contracting around’ constitutional confrontation both reflected and reinforced the broader dynamics of executive aggrandisement. This point is of central importance for understanding the informal effects of the consensual approach between the AG and Netanyahu (and subsequently, members of his government) on the process of democratic backsliding.
In real time, many scholars regarded the decision to adopt a legal position affirming the constitutionality of Netanyahu’s tenure as an ‘original sin’ that effectively set Israel on a path towards backsliding. By contrast, other scholars and legal commentators argued that such a legal course would not only raise serious justificatory concerns, particularly in terms of democratic accountability, but would also have generated even greater instability.Footnote 41 Be that as it may, and at least in retrospect, it now appears clearer that the MOU with Netanyahu – intended to serve as a constitutional constraint on his power and conduct – ultimately collapsed and eroded basic rule of law norms. Moreover, once the Court endorsed this agreement-based approach and upheld his tenure, the path was opened for public and political norms to adapt and evolve accordingly. This is to the point that, at present, holding office while standing criminal trial is not only perceived as politically legitimate, but the public discourse has also come to include widespread calls (now reportedly under serious consideration by the President’s Office) for granting a pardon. The attempt to constrain power through agreement-based mechanisms thus paradoxically resulted in its expansion.
2.2. MOU between the OLC and the Minister of National Security (Itamar Ben-Gvir)
Following the 2022 elections, in which Netanyahu’s right-wing bloc won a Knesset majority, the leader of the ‘Jewish Power’ party, Itamar Ben-Gvir, was appointed Minister of National Security, overseeing the police. The designation of Ben-Gvir, a former radical right-wing activist with prior convictions, which include incitement to racism and supporting a terrorist organisation, raised concerns that he would seek to consolidate his power and lead a political takeover of the police. These concerns were intensified by an amendment to the Police Ordinance he promoted and passed in the Knesset before he assumed office, which significantly expanded ministerial powers over the police.Footnote 42
In this instance also, constitutional ambiguity persisted. The relevant legal doctrine, as discussed above, empowers the Court to disqualify a candidate with a criminal record from ministerial office. However, the operative considerations relate to the gravity of the offences and the time elapsed since their commission, raising doubts as to whether Ben-Gvir’s past criminal background constituted sufficient grounds for disqualification. Furthermore, the existing doctrine, in principle, permits disqualification not only on the basis of criminal liability but also in the light of administrative evidence – namely, on the grounds of the reasonableness of the appointment, such as whether an individual with an extremist background is fit to exercise command authority over the police. It remained unclear whether the Court will intervene on these grounds of reasonableness.
Alongside persistent legal ambiguity, Ben-Gvir’s appointment was shaped by a long-standing political norm in both parliamentary and public discourse – explicitly articulated and previously upheld by Netanyahu himselfFootnote 43 – holding that Ben-Gvir and his party were illegitimate partners in government formation or candidates for high-ranking executive positions.Footnote 44 This norm evolved during the years in which Ben-Gvir, a far-right activist under security monitoring, transitioned into formal politics. It was reinforced by two near-disqualification proceedings against his party in court and by a broader political convention that, while he may serve as a Member of the Knesset, he could not legitimately join a governing coalition. Netanyahu’s decision in 2022 to bring Ben-Gvir into the cabinet constituted a clear breach of this entrenched political convention, a move that could have triggered constitutional resistance aimed at barring his appointment. Conversely, judicial or constitutional validation of the appointment risked conferring full political legitimacy upon him.
As he was sworn in as minister, a petition was subsequently filed challenging the appointment. Yet, once again, the AG adopted a position that the appointment should be legally upheld. Her position was conditioned on Ben-Gvir’s commitment not to undermine the institutional independence of the police in the performance of his duties, a matter that the AG suggested would require ongoing monitoring.Footnote 45 Here the AG’s consensual approach emerges again – that is, her tendency not to try to argue the merits of the invalid appointment, but to accept Ben-Gvir’s declarations and commitments and, by implication, the responsibility to supervise his conduct in office. While relying on the AG’s position, the HCJ rejected an initial petition challenging the appointment, ruling it was not extremely unreasonable, in part because of the assumption that the police is an independent body operating separately from the political arena.Footnote 46 The Court’s ruling maintained a degree of constitutional uncertainty. While it accepted Ben-Gvir’s representation that he had ‘moderated his radical positions’, it simultaneously preserved the possibility of future judicial scrutiny of his conduct. The majority opinion specifically left open the question of whether the appointment could later be challenged on grounds of unreasonableness in the light of subsequent actions taken during his term in office.Footnote 47
However, since the petition was rejected and Ben-Gvir assumed office, reports have emerged suggesting that this premise of police independence was proved unfounded. The course that would develop from that point until 2026 would be an attempt by the AG to regulate the minister’s conduct, but at the same time – a growing pattern, which, starting in 2025, becomes visible and antagonising – of ministerial violation of all the norms agreed between the parties, for instance, that Ben-Gvir interferes by giving operational instructions to field commanders at anti-government protests.Footnote 48
A second rotation of petitions was filed seeking to terminate his tenure, based on accumulated evidence that he is undermining police independence and improperly interfering in its operations. The AG asked the Prime Minister to reconsider Ben-Gvir’s continued tenure. At this juncture, Netanyahu himself also became engaged in the dispute with the AG regarding the question of legal protection to be afforded to Ben-Gvir, both by Netanyahu’s political reliance on Ben-Gvir and by an interest in assuming authorship and political credit for the confrontation with the AG.
Later, the AG informed the HCJ that, in seeking to exhaust all available measures before a judicial determination, she had reached an MOU with Minister Ben-Gvir.Footnote 49 Under this arrangement, she would not oppose his continued tenure, provided that he commits to be bound by a ‘framework of principles’ that would ensure that the police will operate properly, in a non-partisan manner, and in accordance with the rule of law.
The framework addressed several areas. First, it established that the minister would not be involved, directly or indirectly, in the police’s handling of protest events, including operational decisions and force allocation, and that any protest-related policies would be published in advance after consultation with the Police Commissioner and the AG. Second, the minister would not generally interfere in operational decisions or the police’s operational discretion. Third, the minister would not intervene in investigations, particularly those of police officers. Fourth, the framework imposed limitations on the minister’s involvement in police appointments and promotions, such as requiring adherence to professional recommendations for promotions up to a certain rank.Footnote 50
The agreement further provided that a joint implementation team – comprising representatives of the ministry, the police, and the AG’s office – would anchor these principles in the formal regulations and standing orders of the ministry and the police within 60 days. The framework was then submitted to the HCJ, which endorsed it by recording the principles and the minister’s consent in its decision and attaching the framework as an appendix, effectively incorporating it into the judicial proceedings.Footnote 51
The arrangement proved short-lived. The petitions were filed in early 2024. Only after approximately 15 months did the AG complete the MOU, a delay that afforded Ben-Gvir substantial time to consolidate his public standing as a legitimate minister and to entrench his effective control over the Ministry of National Security. The subsequent period, from mid-2025 to early 2026, was characterised by a systematic contravention of all elements of the ‘framework of principles’. These actions were consistently documented by representatives of the AG, resulting in the compilation of a comprehensive evidentiary record presented to the Court, detailing alleged legal violations, omissions, instances of governmental misconduct and suspicions warranting criminal investigation. In the public sphere, Ben-Gvir was among the most prominent of the cabinet ministers advocating the dismissal of the AG.
In January 2026, the AG provided an updated to the Court that Ben-Gvir had violated the agreement. He had publicly commented on specific criminal investigations of police officers, expressed support for officers under investigation and undermined ongoing proceedings; blocked a senior officer’s promotion on grounds deemed unprecedented by police professionals, apparently based on her testimony in the criminal case against the Prime Minister; and publicly released a policy document on protests during anti-government demonstrations without proper authorisation or consultation, seemingly attempting to influence police conduct at protests in violation of law and court rulings.Footnote 52
In this update to the Court, the AG essentially admitted that her consensual approach embodied in the MOU had failed. The AG’s notice of January 2026 called upon the Court to convene a hearing and to issue a conditional order (order nisi) that would advance the adjudication of the petition. However, even in this communication, the AG signalled a preference for intervention by the Prime Minister and had not yet fully crossed the institutional threshold associated with adopting a definitive adversarial stance.
Only at a later stage – once it had become clear that the Prime Minister unequivocally supported Ben-Gvir, and more than two years after the petitions had been filed – did the AG adopt an explicit and direct change in position. This shift ultimately led to the expansion of the judicial panel and the issuance of the conditional order. It was only at this juncture that the AG revised the analytical framework underpinning her legal position,Footnote 53 advancing the constitutional argument that Ben-Gvir’s conduct constituted an infringement of democratic and constitutional core principles (on police independence, its implications for human rights, the rule of law, equality before the law, and the basis of public legitimacy for police action in a democratic state)Footnote 54 sufficient to justify his removal from office,Footnote 55 even his dismissal from ministerial office altogether.
From this point onward, the case would evolve into a constitutional showdown between the government and the Court. At present, there remains a degree of uncertainty as to how the Court will ultimately rule. However, and this constitutes our central claim, this development occurred only after more than three years during which Ben-Gvir remained in office, and following an extended effort to avoid direct confrontation through the deployment of a consensual approach that, over time, proved entirely unsuccessful. Unfortunately, even after the matter returned to the Court before an expanded panel – initiating another hearing on the petition recently, and despite the AG’s effective acknowledgement that the contractual approach had failed – the judges again sought to steer the parties towards an ‘agreement’ concerning the imposition of additional and enhanced obligations on the minister, before proceedings to deciding on his removal would be suspended. By that stage, the Court itself had already become the subject of harsh public criticism,Footnote 56 both for endorsing the AG’s contractual approach and for its own institutional reluctance to resolve the matter decisively.
Contemporary assessments in Israel suggest that the police, over which Ben-Gvir exercises authority in a tenure still ongoing, constitutes the largest civil service apparatus to have been captured through the process of politicisation that the minister succeeded in entrenching within his ministry.Footnote 57 This should be understood alongside additional dimensions of democratic erosion attributable to his continued tenure in that office and within the government more broadly, a pattern of politicisation that the AG herself ultimately acknowledged at the conclusion of the process. This case therefore provides a second illustration of how ‘contracting around the democratic standards’ exacerbates processes of democratic backsliding.
2.3. Agreement between the OLC and Netanyahu on the appointment of the ISA Director
The Israel Security Agency (ISA) is Israel’s internal security service, with its Director appointed by and accountable to the Prime Minister. The sensitivity of this direct reporting relationship becomes evident in the case of former Director Ronen Bar (2021–25). Work relations between Bar and Prime Minister Netanyahu deteriorated significantly following the October 7 attack, with the government blaming him for the intelligence failure,Footnote 58 while Bar was simultaneously pursuing sensitive investigations, including the ‘Qatargate’ affair involving Netanyahu’s office staff suspected of working for Qatar,Footnote 59 and a separate probe into leaked classified military documents.Footnote 60 This mounting tension led to the government’s unprecedented dismissal of Bar, claiming it had lost confidence in him.Footnote 61 The move raised concerns given fears that the dismissal was arbitrary and tied to extraneous considerations, against the backdrop of the ongoing investigations. After the matter reached the HCJ, Bar announced his early resignation, prompting the government to cancel the removal and request that the petitions be dismissed as moot.Footnote 62 The Court nevertheless issued a principled ruling, determining that the dismissal process had been unlawful and that Netanyahu had a conflict of interest as a result of ongoing investigations, emphasising the importance of protecting the independence of the ISA Director’s position from politically motivated or arbitrary removals.Footnote 63
Following the ruling and the Court’s determination of Netanyahu’s conflict of interest, the AG forbade him from appointing a new ISA Director until receiving new guidance from her.Footnote 64 Defying this instruction, Netanyahu announced his decision to appoint Major General David Zini to the position.Footnote 65 In response, the Deputy Attorney General (Public-Administrative Law), Gil Limon, issued a legal opinion, adopted by the AG, concluding that Netanyahu’s appointment of Major General Zini was ‘unlawful and invalid’.Footnote 66 Applying the Supreme Court’s conflict-of-interest findings to the appointment context, the opinion held that removal of the outgoing ISA Director and the appointment of his successor cannot be severed, as both bear directly on criminal investigations involving the Prime Minister’s close advisers. The prescribed remedy was the transfer of the Prime Minister’s appointment power to another minister. Yet even this transfer, the opinion cautioned, would require stringent procedural safeguards, given the serious concern that the designated minister would merely serve as the Prime Minister’s ‘long arm’ – a concern compounded by the government’s public declaration of support for Zini’s candidacy while aware of the conflict of interest.
Petitions were subsequently filed before the HCJ challenging the Deputy Attorney General’s opinion, seeking to permit the government to proceed with Zini’s appointment. At the hearing – before Justices Amit, Stein and Kanfi-Steinitz – the panel intimated that a more flexible posture on the part of the AG might be warranted. The justices questioned why less intrusive alternatives had not been considered before resorting to the most drastic remedy of stripping a statutory power that the ISA Law specifically vests in the Prime Minister based on his unique standing vis-à-vis the Agency, and doubted whether the proposed transfer of authority was even practicable. The panel urged the parties to negotiate a compromise.Footnote 67 Shortly thereafter, such a compromise was announced: to neutralise the conflict of interest, Netanyahu would be able to appoint an ISA Director after the investigations into ‘Qatargate’ and the leaked documents were concluded, which was expected to take approximately two months. Additionally, the appointed Director would not be involved, directly or indirectly, in the investigations until the matter was examined and arranged by the AG as part of a conflict-of-interest arrangement.Footnote 68
The HCJ approved the compromise and, once the time had elapsed, Netanyahu announced Zini’s appointment. Afterwards, the Advisory Committee on Senior Civil Service Appointment, which is required by law to examine the integrity of both the appointee and the appointing authority, approved the appointment and, among other things, rejected the claim of Netanyahu’s conflict of interest, citing the HCJ approval of the compromise.Footnote 69 The cabinet then approved the appointment and, although petitions challenging it were filed, an interim injunction was deniedFootnote 70 and the appointment took effect.
This agreement, which was upheld by the Court both when it initially approved the compromise and later in its final judgment on the merits, reflects a shift in the AG’s position. In the immediate aftermath of the Ronen Bar ruling, the AG adopted a firm stance, maintaining that the judgment legally precluded Prime Minister Netanyahu from any involvement in the new appointment. This position, however, was no longer met with a willingness to compromise on Netanyahu’s part, and he instead proceeded to announce the appointment unilaterally. This move, together with the signals emanating from a conservative panel of the Court, prompted the AG to revise its position and to seek the adoption of an MOU that would validate the appointment. Unlike the earlier cases, this agreement appears to have been driven less by mutual accommodation than by institutional constraint and political coercion.
The case of appointing the new ISA head is the third in which the AG adopted a compromise of protecting an appointment, this time also following a proposal from a relatively conservative panel of the Supreme Court. This approach is less controversial from a constitutional point of view as, unlike Netanyahu himself and Ben-Gvir, Zini is not a defendant or a suspect in criminal proceedings, and his past does not raise such issues. However, he comes from the deep right in Israel, and his appointment is considered one that will significantly advance the interests of the settlers in the Occupied Territories. His identification with the deep and radical right in Israel is so clear that in this case, too, the appointment again reflects a blatant violation of a political norm that prevailed before the appointment, which is that the heads of the security organisations are those appointed from within the civil service and do not carry a clear political identification, similar to the model of civil servants in the United Kingdom. Indeed, this appointment was made at the centre of a broader strategy by Netanyahu and his ministers, according to which there is a new call for the appointment of loyalists to senior positions in the public service. In the present case, too, the involvement of legal actors was contractual rather than conflictual, in a way that effectively enabled the radicalisation of the appointment of the head of the security services.
This time, the Court ultimately upheld Netanyahu’s broad authority to appoint Zini. In its final judgment, a conservative two-justice majority declined to interfere with the Prime Minister’s discretion, dismissing all petitions.Footnote 71 The majority minimised the defects identified in the appointment process and emphasised institutional restraint in matters of senior security appointments. In dissent, President Amit warned that such restraint risks legitimising appointments marred by conflicts of interest and undermining the legal safeguards designed to preserve the independence of Israel’s security establishment.
Most notable is the reasoning underlying the dismissal of the conflict-of-interest claims. Justice Solberg held that these claims were simply not open for adjudication, on the ground that the prior agreement with the AG had been given the force of a judicial decision. That agreement,Footnote 72 he reasoned, provided explicitly that the Prime Minister would select the candidate and that the discussion of his conflict of interest would ‘thereby conclude’, regardless of the candidate’s identity. Both parties to the agreement appeared before the Court confirming that the appointment had been carried out in accordance with its terms and, in Justice Solberg’s view, public petitioners who were not parties to the agreement could not reopen questions settled by it as doing so would render it ‘perforated like a sieve’.Footnote 73
The effect of this reasoning is to grant a procedural consent arrangement between the executive and the AG the status of a legal estoppel, binding the AG and, by extension, the Court itself from revisiting the conflict-of-interest question even where the concrete appointment raises unanticipated difficulties, and collapsing the distinction between a procedural consent arrangement and a substantive waiver of the power of review.
This may signify the final note in the collapse of the AG’s agreement-based approach. Not only have previously established agreements been openly breached by the players within the executive, but the very reliance on an agreement-based framework has led the judiciary to prevent the AG from withdrawing such agreements, and even to accord them quasi-legal status (in a manner that departs from conventional constitutional law). In this case, not only was the appointment approved, notwithstanding a contrary legal position and evident defects, but the AG was also effectively constrained by the very policy of agreement that she herself had developed in earlier cases.
3. Analysis: Democratic backsliding through consensual gatekeeping
The scrutinised cases reveal several dynamics in the chronology of the AG’s interactions with the populist government in Israel. Most prominently, and as a recurrent dynamic of constitutional change, the AG faces a repeated dilemma: whether to pursue constitutional showdowns or attempt to reach agreements. In each instance, she opted for compromise, meaning that she effectively defended the legality of the appointments and tenure at stake. This position carried significant weight with the Court, as evidenced in all cases where the Court endorsed the AG’s stance regarding the compromises/MOUs. The AG’s approach of treating the appointments as legally valid creates the impression that any underlying legal controversy has already been resolved and that the apparent illegality has been remedied.
In a more counterfactual scenario, in which the AG had not entered into such agreements, she would have been required to articulate an independent legal position. In at least some instances (for example, Ben-Gvir and Zini), this could well have resulted in disqualifying the appointments. Under such circumstances, the path towards judicial endorsement of that position and, consequently, towards intervention would have been considerably shorter and more legitimate. Once the AG appeared before the Court armed with institutional agreements and a supportive legal position, however, the Court’s capacity to intervene was significantly more constrained.
As a result, the Court’s opportunity to intervene narrows – an outcome that can serve its institutional interest in avoiding politically charged constitutional showdowns. However, and this is the more consequential effect, the Court is thereby prevented from addressing the substantive constitutional and administrative questions raised by these appointments, limiting its ability to develop new constitutional norms and a more workable approach, which is also very much needed in the current backsliding circumstances, including in relation to ‘militant democracy’ doctrines.Footnote 74 In the case of the Prime Minister’s tenure, this made it easier for the Court to determine that the law allows him to serve, a ruling that in a certain sense is the original sin of the current democratic backsliding in Israel.
Moreover, an additional counterfactual course of action that warrants consideration – yet was entirely absent from the AG’s strategic response to the breach of the MOUs – was the pursuit of a criminal law pathway. The AG serves not only as the government’s chief legal adviser but also as the public prosecutor. The Prime Minister’s breach of a conflict-of-interest arrangement could have been framed as contempt of court, or even as a substantive criminal offence, such as breach of trust. A similar, and arguably even more compelling argument applies in the case of Ben-Gvir. A substantial portion of the impugned conduct could plausibly have been situated within the domain of criminal law – most notably, political interference in operational-level appointments within the police, as well as instances of discriminatory practices favouring right-wing actors within the Ministry of National Security. To the extent that the AG invested increasing institutional resources and capital in the contractual-administrative track, she effectively relinquished, in parallel, the possibility of pursuing criminal enforcement, an avenue that may have carried significantly greater deterrent potential.
A further issue emerging from these cases concerns the complex interplay between legal institutions and political norms. The relationship between binding constitutional norms and political conventions has become a focal point of scholarship on democratic backsliding in recent years.Footnote 75 The present case studies illuminate a distinctive dynamic in how legal processes, government legal counsel, and judicial decisions interact with the prevailing political norms in these matters. We contend that in each case the AG’s approach provided legitimacy for the violation and erosion of political norms by the political actors.
The compromise regarding the Prime Minister’s conflict of interest legitimised his ability to serve while under indictment, breaching a political norm previously stated by Netanyahu himself: that a Prime Minister cannot serve while facing criminal charges. Since Prime Minister Ehud Olmert’s political decision to resign upon the filing of an indictment, a durable political norm has prevailed, according to which a Prime Minister under indictment lacks the legitimacy to remain in office. This norm proved sufficiently robust to generate sustained public, political, partisan and legal debate within Israeli society, culminating in the point at which the conflict-of-interest arrangement furnished the relevant approach with a legal mechanism for Netanyahu’s tenure. Without disregarding the legal complexity inherent in a determination that such tenure is invalid as a matter of law, it can be stated clearly that the consensual approach contributed to the erosion of this political norm.
Similarly, the agreement with Ben-Gvir that enabled his ministerial appointment sanctioned the elimination of the political norm, treating his party as beyond the pale of government participation. In this context, the contribution of the AG’s involvement was not decisive, inter alia, because the Supreme Court itself ultimately declined to disqualify Ben-Gvir from running in the election. Nonetheless, Ben-Gvir’s entry into the cabinet in 2022 provoked profound public controversy surrounding the political norm of excluding him from positions entailing the exercise of coercive power. The consensual AG intervention – and the attempt to condition his powers on a limiting agreement – contributed to his normalisation as a legitimate member of the government.
Likewise, the settlement concerning the appointment of the ISA head validated the nomination of a semi-politically identified individual from outside the organisation’s professional ranks. At this stage (2025), the AG was already in a relatively weakened position compared to the outset of her ‘game’ with Netanyahu, inter alia, because of the intensifying calls for Baharav-Miyara’s removal. Nevertheless, her acquiescence in the appointment reflected a complete capitulation to an appointment tainted by defects. More fundamentally, however, it constituted a signal by the Prime Minister that even a candidate from the far reaches of the extreme right is fit and legitimate to head the Agency, thereby wholly undermining the long-standing norm of moderation and Etatism associated with candidates appointed to such positions.
In all these instances, different conduct by the government’s legal counsel could have produced alternative outcomes. Such conduct may have either prevented the erosion of these political norms or, at minimum, presented genuine opposition to their abandonment, thereby casting such erosion in a negative light that would have potentially reinforced within the political system and public discourse the understanding that such norm violations are fundamentally destructive.
Our discussion of the AG’s consensual approach must be situated against the broader backdrop of her relationship with the government, which throughout the period 2023 to 2026 has been characterised by sustained confrontation across a wide range of issues, including numerous instances in which she has adopted an adversarial legal posture in the HCJ. It would therefore be inaccurate to characterise the incumbent AG as pursuing an ‘enabling’ legal advice to the government. On the contrary, she has repeatedly tested the boundaries of her authority, a stance that has itself triggered multiple efforts to curtail her tenure, whether through direct attempts at removal or through proposals to restructure the powers of her office. Indeed, in July 2026, the Netanyahu government passed a law that curtails the AG’s powers, primarily regarding the extent to which its opinion is binding on the cabinet. Our analysis must also be understood against the backdrop of this reality, of a constant threat to the AG institution. That said, the three MOUs examined in this article arguably constitute the clearest instances in which the AG possessed a genuine opportunity to constrain executive power, to reaffirm political and constitutional norms, and potentially to moderate the pace of political capture within the executive branch.
Naturally, a more confrontational strategy by the AG might have escalated the situation and potentially accelerated the deterioration of norms. Nevertheless, this argument remains speculative, and what can minimally be asserted is that such fears were present and influenced the AG’s decision-making. More generally, these cases demonstrate that law – as interpreted and projected by legal actors – can play a significant role in providing legitimacy for the erosion of political norms while facilitating the creation of new, less worthy conventions. These new norms can, as in our cases, ultimately expand politicians’ power at the expense of values such as accountability, anti-racism and professionalism, and accordingly recast what is perceived as possible and legitimate in terms of our political imagination.
Another phenomenon emerging from this analysis that merits attention is that in the short term, the consensual approach and MOUs strengthen not only the government’s power, but also that of the AG herself. This occurs because in the first two cases, the AG is designated as the supervisor of the implementation of the agreements. Initially, this creates deliberation about oversight of the appointee’s conduct, whereby the AG can effectively guide their behaviour, thereby enhancing her power. However, in practice, this empowerment proves merely temporary and non-strategic, because over the long term the agreement is violated or the appointee ceases to heed the AG and returns to attacking her in the public arena as well, as both Ben-Gvir and Netanyahu did. Part of the appeal of the agreements analysed in this article stemmed from what appears to have been the AG’s real-time understanding that such arrangements could enhance the institutional authority of her office and thereby help to preserve the rule of law – an assessment that ultimately encouraged the adoption of this approach. In retrospect, however, this strategy backfired: it weakened the AG’s position and intensified the institutional backlash against the institution.
The analysis further reveals the ‘normalisation’ of MOU agreement violations. In retrospect, it has become evident that both Netanyahu and Ben-Gvir breached the agreements reached with them; moreover, with respect to Ben-Gvir, this conclusion has now crystallised into the AG’s current legal position. These violations occurred through a gradual process, where initially the AG was determined to defend the agreements but, over time, accumulated breaches created an overall picture revealing the failure of the agreements.
The normalisation of violations reveals two key consequences. First, it essentially demonstrates the failure of the consensual-contractual strategy. Thus, the objectives for which the AG seemingly adopted this approach – preserving police independence or protecting the state’s judicial system from the influence of an indicted Prime Minister in conflict of interest – were not achieved; signs of police politicisation multiplied; and the Prime Minister operates relatively freely regarding the judicial system (at times through his ministers, who operate as proxies and, where he deems it strategically appropriate, directly – thereby engaging in a manifest breach of the agreement). Second, the normalisation of agreement violations only reinforced and highlighted the breach of political norms discussed earlier. The repeated violations effectively established new precedents, such that what was once considered unacceptable behaviour now became tolerated, further cementing the erosion of political conventions that had already been legitimised through the initial settlements. In this context, it is also noteworthy that the AG did not proactively initiate judicial proceedings to enforce the arrangement, whether against Prime Minister Netanyahu or against Minister Ben-Gvir, but instead confined her role to responding to petitions brought before the Court. This posture – and, in particular, the AG’s opposition to a judicial determination that Netanyahu had breached the arrangement or to the articulation of attendant legal consequences – further reflects a broader tendency to preserve the agreement to the greatest extent possible and to avoid direct institutional confrontation.
However, not only did Ben-Gvir and Netanyahu violate their conflict-of-interest agreements, but the populist government and its supporters proceeded to turn the tables, systematically deploying conflict-of-interest allegations against the AG herself. Over the past year, not only have violations of conflict-of-interest arrangements become increasingly blatant and undeniable, but the government has also advanced the claim that the AG and members of her office are themselves compromised by various conflicts of interest. These allegations rest on tenuous legal foundations yet serve a clear strategic purpose: to undermine and neutralise the AG’s own spheres of authority.
For instance, in the matter involving the investigation of the Military Advocate General, the government claimed that the AG had a conflict of interest in continuing to oversee the investigation, arguing that she herself would need to be questioned as part of it.Footnote 76 This claim was accepted by the Court, inter alia, in the light of the genuinely exceptional circumstances in which the Chief Military Prosecutor was subjected to police questioning for the leaking of a video from a military detention facility. On this basis, the Court denied the AG’s authority to accompany the criminal investigation, a development that symbolised the mobilisation and weaponisation of the conflict-of-interest claim against the AG itself. In another matter, it was argued that she was barred from involvement in cases involving former ISA heads Nadav Argaman and Ronen Bar because they had personal connections with her husband, who had previously served in the ISA and has since fallen ill.Footnote 77 An additional conflict-of-interest allegation that was raised claimed that the AG had maintained a romantic relationship with a prosecution witness in the Prime Minister’s trial.Footnote 78 The legal actor’s attempt to limit the populist politician through conflict-of-interest arrangements led to the populist weaponisation of conflict-of-interest claims against the legal actor itself, in a manner that undermines its effectiveness and legitimacy.
A final dynamic discernible from analysing these three cases is the radicalisation of figures whose appointment receives legal approval. The consensual approach leads, in practice, to approving candidates with extremist backgrounds for political positions, primarily because they are directly elected and there was ambiguity about whether constitutional law would limit their tenure. However, over time, appointments undergoing such processes become increasingly extreme. This stems naturally from the government’s own radicalisation over time, but the intriguing question this article sought to present and analyse is the extent to which the contribution of opposing legal actors facilitates this process, and whether an alternative approach of constitutional confrontation and legal resistance to these appointments might have produced a different outcome.
4. Conclusion
This article demonstrates that democratic backsliding can proceed not only through formal constitutional change and salient landmark cases but through contractual legal arrangements that erode political norms, while attempting to avoid direct constitutional confrontation. Examining three Israeli MOUs between the Israeli AG and Netanyahu’s governments, it showed how attempts by legal actors to restrain populist leadership through consensual agreements ultimately legitimise norm violations, weaken judicial capacity to articulate constitutional standards, and facilitate the entrenchment of executive power. This cycle of agreement-making without effective enforcement normalises both the erosion and the later violation of political conventions, undermines the authority of legal gatekeepers, and contributes to the gradual restructuring of democratic governance within hybrid legal-political environments.
Acknowledgements
This project was supported by the kind funding of the Rubinstein Center for Constitutional Challenges at Reichman University and the Separation of Powers Laboratory of the Center for Applied Research on Risks to Democracy (CARRD) at Tel-Aviv University. We thank Barak Medina, Anat Ovadia-Rosner and Natan Milikowsky for excellent comments.
Funding statement
Not applicable.
Competing interests
The authors declare none.
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