Attorney General’s Move Could Turn Every Knesset Member Into a Defendant

Photo: Yonatan Sindel, Flash90

Yuval Malka, 4, 42 minutes ago

The Attorney General’s move could turn every Knesset member into a defendant

The attorney general’s decision to indict Knesset member Tali Gottlieb is sparking a constitutional storm. Such a step could render substantive immunity a dead letter and paralyze elected officials in the future. Is this legitimate enforcement, or a dangerous attempt by the executive branch to cripple the independence of lawmakers?

Attorney General Gali Baharav-Miara’s decision to file an indictment against Knesset member Tali Gottlieb for publishing the name of a Shin Bet agent is not just another routine criminal proceeding. Behind the headlines lies a much deeper constitutional question: is this legitimate enforcement of the law, or an attempt to significantly narrow the room for maneuver of elected officials through the law enforcement system?

Knesset member Tali Gottlieb | Photo: Noam Moskowitz, Knesset spokesperson

It should be made clear at the outset that there is no dispute that the legislature sought to protect the identities of Shin Bet personnel. The logic behind that protection is clear, safeguarding the personal security of the service’s members and their ability to carry out their duties without public exposure. However, in the present case, the central question is not what the Shin Bet Law says, but whether Tali Gottlieb’s action is protected by constitutional immunity as a Knesset member. This is a fundamental difference, because even if we assume for the sake of argument that the publication did indeed fall within the prohibition set out in the law, the question remains whether a Knesset member can be prosecuted for an act carried out as part of his or her public and parliamentary role.

The Knesset Members Immunity Law was designed precisely for such situations. Substantive immunity, also known as functional immunity, was not intended to give Knesset members a personal advantage and is not a “get out of jail free card.” Its purpose is to ensure that an elected official can carry out his or her role without fear that the enforcement system will initiate criminal proceedings over actions taken as part of that public mission.

The legislature understood decades ago that in a healthy democracy there must be mechanisms protecting the Knesset from excessive intervention by the executive branch; otherwise, any Knesset member who criticizes the government, exposes embarrassing information, or raises unusual claims could find themselves under criminal investigation. In such a situation, parliamentary immunity loses its meaning. That is precisely the heart of the dispute in the Gottlieb case.

Tali Gottlieb does not claim that the law does not exist. She argues that the publication was made as part of her public activity as a Knesset member, as part of her work on issues of broad public interest. One may agree with her judgment or dispute it, but the legal question is whether she acted within the scope of her role. If the answer is yes, substantive immunity is supposed to apply.

Precisely because substantive immunity is broad and far-reaching, it continues to apply even after a Knesset member leaves office. It does not protect the person, but the position and the independence of the legislative branch. By contrast, procedural immunity concerns only the conduct of the criminal proceeding itself and is granted in certain cases by a Knesset decision. In Tali Gottlieb’s case, the debate is not about procedural immunity at all, but about the more basic question of whether substantive immunity exists in the first place.

Gottlieb in the hearing | Photo: Yonatan Sindel, Flash90

This also raises another fundamental question, should the attorney general be the one who effectively determines the boundaries of parliamentary immunity by filing indictments? In a democracy, the separation of powers is not just a slogan. The Knesset is not an arm of the prosecution, and the prosecution is not a body responsible for political oversight of Knesset members. When an indictment is filed against a Knesset member for an act he or she claims was carried out in the course of performing the role, this is not merely a confrontation between an individual and the state, it is a confrontation between two branches of government.

Supporters of prosecution will argue, and with some justification, that Knesset members are not above the law. That is a correct claim, but no one is saying otherwise. The question is whether the very existence of parliamentary immunity, established in Basic Law and explicit legislation, requires the enforcement authorities to exercise special restraint when parliamentary activity is involved.

It is no coincidence that there are not many precedents similar to the present case. Over the years there have been various disputes concerning the immunity of Knesset members, but there have been almost no cases in which an elected official was prosecuted under similar circumstances of publishing information while invoking substantive immunity. The absence of precedents does not prove that Tali Gottlieb is right, but it certainly shows that this is an unusual, sensitive, and precedent-setting issue. Precisely for that reason, greater caution would have been warranted.

In the end, this debate is not only about Tali Gottlieb, it concerns a much broader question: whether a Knesset member will in future be able to carry out his or her role without fear of criminal proceedings when acting, for better or worse, מתוך a belief that he or she is fulfilling a public mission.

If parliamentary immunity is interpreted too narrowly, it will become a dead letter in the statute book. If every controversial act by a Knesset member ends in an investigation, a prosecution recommendation, and an indictment, it will not only harm the specific Knesset member being targeted, it will also damage the principle of Knesset independence.

That is why the real test in the Gottlieb case is not whether we agree with what she published. The test is whether we still believe that parliamentary immunity is meant to protect precisely the difficult cases, the controversial and unpopular ones, because if not in such cases, when exactly is it supposed to apply? We must remember that damage to this status could affect the handling of sensitive security issues and contacts with various actors in the region, including those connected to the Palestinian population or other foreign arenas, where parliamentary access to information is a critical working tool for elected officials.

Yuval Malka is a retired police officer and a graduate of a dedicated command and staff course of the Israel Police. He holds a bachelor’s degree in business administration and a master’s degree in political science with a specialization in national security. In his last position, he served as head of the intelligence division of the Border Police.

Gali Baharav-Miara, immunity, Tali Gottlieb, Shin Bet, rule of the officials

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