Guest Post by Reb Ben Rothke of Passaic. Note that I don't necessarily agree with everything in his essay, but it is a fine and important piece that should serve as a springboard for conversation.
Karov l’malchus 2017- to boldly go where no posek has gone before
Halacha, like American law, is often precedent based; where an earlier event or action that is regarded as an example or guide to be considered in subsequent similar circumstances.
With the Trump administration having a large number of Orthodox Jews in his inner circle, questions of karov l’malchus are coming up. Yet the dearth of halachic opinions on the topic makes coming to a definitive answer a challenge.
The ability to decide serious halachic questions based not on an individual’s knowledge of Jewish text and halacha, rather of their ability to search Google or the Bar Ilan Responsa Project has created the often-problematic genre of Google poskim.
In the few weeks since the 2017 presidential inauguration, myriad bloggers, columnists, and social commentators and more have emerged as Google poskim and taken to opining on the propriety of some of the religious actions undertaken by Jared and Ivanka Kushner. There articles ranged from glowing remarks of Rabbi Leonard Yehuda Oppenheimer in The Miracle that is Ivanka Trump, to that of Simon Yisrael Feuerman in Why Jared and Ivanka’s anonymously granted Shabbat exemption is problematic.
Yet where all these writers fail in their analyzes, is that in this writer’s opinion, the Kushner’s situation is so historically unique and unprecedented from a halachic perspective, one can’t form an opinion due to the dearth of response on the topic.
With that, consider the following 3 situations:
A child sees a man enter a cemetery and says incredulously “I don’t know how he can go there. Everyone knows it’s forbidden for a Jew to enter a cemetery”.
A child sees a person driving on Shabbat and says in amazement “I don’t know how she can drive on Shabbat. Everyone knows it’s forbidden”.
An adult hears that the Kushner’s were passengers in a car on Shabbat. He sees a picture of them in the National Cathedral. He then writes a scathing blog post condemning their actions, stating “of course what they did is indisputably wrong. As it’s clearly forbidden for a Jew to ride in a car on Shabbat or enter a church.
The answer to the first two scenarios are quite simple. The third scenario is not.
In the first case; the child who observed the man going into the cemetery is from a family of cohanim and naively assumed that it’s forbidden for anyone to enter a cemetery. In the second case, the child was from a small town and didn’t know the driver was a Hatzola member responding to an emergency call on Shabbat.
In the final case, the adult was answering based on their understanding of basic halachic concepts. But what was lacking in his analysis was not entering in the concept of karov l’malchus. And it’s karov l’malchus that turns that scenario from an absolute issur, to an action that may turn out to be quite both permitted and meritorious.
The main sources for karov l’malchus are Bava Kama 83a and Me’ila 17a. Karov l’malchus is a rabbinic dispensation that, at limited and very specific times, allows for the suspension of both Torah laws and rabbinic enactments, for those who can positively influence senior governmental officials.
A fundamental question is how can chazal allow for the violation of a Torah law? There are several answers ranging from the fact that savings lives allow for the suspension of certain halachot, to the concept of masaro hakatuv l’chachamim; meaning that chazal at limited and very specific times, are given the obligation to carve out how specific halachot are to operate.
Bava Kama states that someone who is misaper kumi, gets a specific type of haircut such that their forehead is shaved, has violated the issur of following in Emorite practices. The reason being that the kumi haircut was a specific non-Jewish practice.
The Talmudic discussions center on two individuals, Avtulmus bar Reuven and R’ Reuven bar Istrobili who were exempted from the kumi haircut ban since they interacted with Roman officials. R’ Reuven bar Istrobili passed himself off as a Roman Senator to prevent the Senate of the Roman Republic from passing legislation to liquidate the Jews.
Rabbi Dr. Dov Zakheim was the United States Under Secretary of Defense (2001–2004) and Deputy Under Secretary of Defense (1985–1987) during the Reagan and Bush administrations. As a person who was indeed karov l’malchus, he writes that karov l’malchus strictly speaking means anyone close to the government, but not necessarily part of it.
Zakheim writes in Nehemiah: Statesman and Sage, that as cup-bearer (officer of high rank in royal courts whose duty it was to serve the drinks at the royal table; a position of greatly valued and given to only a select few throughout history) to Artaxerxes; part of Nehemiah's duties included the tasting the non-kosher wine of the king.
Approaching the answer
When analyzing a sugya and its halachic ramifications, the flow is generally quite linear. At its most basic level, one starts with a Biblical verse and then sees how it’s dealt with in the gemara. Next is to review how the rishonim and achronim interpret the topic. To get towards a definitive practical answer, a review of the relevant shailos v'teshuvos literature is then undertaken. This is where precedent comes to play. Yet when it comes to the Kushner’s, there’s a significant shortcoming with this calculus as there is a dearth of response on the topic.
It’s this writer’s opinion that the Kushner’s situation is so historically unique, that we lack any significant shailos v'teshuvos literature in which to base an opinion on. A questioner can certainly start with Bava Kama, Me’ila and the rishonim; yet the halachic buck stops there. The utter dearth of shailos v'teshuvos related to karov l’malchus is not surprising given its historical infrequency.
With the many articles written about the Kushner’s, I’ve yet to find where the author has been qualified to voice their opinion about their specific instance of karov l’malchus. In fact, I’m hard pressed to find a greater example of karov l’malchus of the past 2,500 years than the Kushner’s.
History has been replete with Jews close to national leaders. The list ranges from the medieval period with Shmuel Hanagid (993-1056), to a renaissance man such as Isaac Abravanel (1437–1508). In the 20th-century, we have figures like Felix Frankfurter (1882-1965) and Henry Kissinger. Hanagid and Abravanel were world-class scholars, while Frankfurter thought of religion as "an accident of birth".
Yet there’s never been at instance until today where those who are karov l’malchus have also been related to the leader. With the Kushner’s, it’s karov in both the literal and figurative sense. Adding to this is that we have not one person, but two individuals who are karov. Perhaps this rarity is proven by the fact that the term is karov l’malchus and not krovim l’malchus.
Professor Haym Soloveitchik writes in Rupture and Reconstruction: The Transformation of Contemporary Orthodoxy, of an over 600-page work on sefirat ha-'omer. This was a subject he astutely noted that had rarely, if ever, rated more than a hundred lines in the traditional literature. I’d venture to suggest that the practical aspects of karov l’malchus hasn’t gotten more than a hundred lines either.
That doesn’t mean there isn’t anything dealt with on the topic. Rabbi Boruch Simon (Professor of Talmud at Yeshiva University) has a shiur which provides an overview the topic.
The last time karov l’malchus and its halachic propriety was brought into question was in 2009 when Rabbi Haskel Lookstein participated in the Presidential Inaugural Prayer Service. This was done at the invitation of then President Barack Obama. Lookstein recited verses from Tanach during a worship service held at the National Cathedral (officially named the Cathedral Church of Saint Peter and Saint Paul), an Episcopalian Church, in Washington, D.C.
Lookstein’s participation lead to a fascinating debate between Rabbis Michael Broyde and Kenneth Auman, which was later documented in Ḥakirah volume 8.
The debate centered on whether Lookstein was in fact karov l’malchus. For those who would like to know, their discussion is an insightful one. After numerous exchanges, Auman wrote that Broyde was right about the uncertainty; that neither he nor Broyde can prove one way or the other who is really karov l’malchus. When it comes to the Kushner’s, res ipsa loquitur.
The topic of karov l’malchus and how it should be invoked for the Kushner’s is a serious question with tremendous implications. Anyone is free to discuss it. But the ability to pronounce a halachic answer, which many of these writers have done, is something that in this writer’s opinion – can be done by but a handful of American poskim.
Karov l’malchus as an avenue for chidush
It’s said that R’ Chaim Soloveitchik focused on kodshim as it was a domain that was ripe for chidush. I think that karov l’malchus is perhaps the next great avenue for chidush given the dearth of source material.
The lack of karov l’malchus source material which to work with means that these American poskim will be like the Chazon Ish, who singlehandedly undertook the task to resurrect the laws of mitzvot ha'teluyot ba'aretz.
More specifically, here are but a few of the many key questions that must be addressed with respect to karov l’malchus:
What exactly is the definition of karov l’malchus? – when dealing with physical space, there’s physical definitions. Measures such as tefach, amah and the like are axiomatic within halacha. With the figurative karov l’malchus; how close is close? Rabbi Lookstein felt that being in proximity and having a chance to get the Presidents ear was enough. Or does one have to be part of the President’s presidential cabinet? Would it apply to the Speaker of the United States House of Representatives?
Where does it fit into the big picture? At a high level, these poskim must consider that even if we knew precisely how karov l’malchus worked in and of itself; they need to address how it plays in the sandbox with myriad other halachot. Does it automatically supersede them or not? Does it share the same properties of pikuach nefesh that is docheh all Shabbat halachot?
Does karov l’malchus even apply in the United States? Taken literally, when chazal used the term, it was meant perhaps to only be for political institutions such as monarchies, despotic governments, and those where the leader had similar unmitigated powers.
In a federal republic, such as the United States, one could question its applicability. Chazal understood a monarchy in part to where a king had absolute power, and could kill at whim. It was precisely those types of rulers where someone who was close to the king could have a positive influence.
For example, this type of positive influence could be manifest in the ability of the king to stave off the execution of a condemned prisoner. In the US, where prisoners often spend decades on death row; the fact that this would span multiple presidential administrations would lessen the ability for a heter of karov l’malchus.
In a democracy like the United States, one could reasonably be of the opinion that karov l’malchus simply doesn’t apply, given the chazal’s use of the term was prescriptive, and not descriptive.
Could we apply karov l’malchus to every United States citizen? Assuming it is in effect in the United States, and based on the notion that it means those who can positively influence senior governmental officials; can we apply it to every registered voter?
Block voting and mass calls to senators and representatives have shown to be a powerful political tool. Based on that, one could argue that should the situation arise, it would seemingly be permitted to call government officials on Shabbat or yom tov.
In the United States, while the president is powerful, often that source of power is facilitated through congress. The bicameral legislature can be the address for getting things done. One person who understood this quite well was the late philanthropist Zev Wolfson. When attempting to get things done, Wolfson forged relationships with congressman. That approached bore significant fruits for his interests through the years.
Karov l’malchus is both a fascinating a stimulating topic. It’s a great topic for a speaker to engage an audience in a topical lecture. But it will all be l'halacha v'lo l'maaseh. Those who want practical answers as to how the Kushner’s should act in relation to karov l’malchus will run into a brick wall, as of this writing; the data set of literature for the question simply does not exist.
And until then, anyone commenting on the situation would be better served by observing the sage advice found at the end of the first chapter of Pirkei Avot - I have found nothing better for the body than silence.
The author would like to thank Rabbi Dovid Hirsch and Meyer Mandel for their comments and cogent insights.