Karov l’malchus — to boldly go where no posek has gone before

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Introduction

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 Donald Trump having a large number of Orthodox Jews in his inner circle and administration, 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, instead 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.

These 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 problematic2.

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 cannot 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”.

The answer to the first two scenarios is quite simple. The third scenario is not.

Karov l’malchus

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 is forbidden for anyone to enter a cemetery. In the second case, the child was from a small town and did not know the driver was a Hatzola member responding to an emergency call on Shabbat.

In the last case, the adult was answering based on their understanding of basic halachic concepts. However, what was lacking in his analysis was not entering in the concept of karov l’malchus. Moreover, it is 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 primary sources for karov l’malchus are Bava Kama 83a and Me’ila 17a. Karov l’malchus is a rabbinic dispensation that, at limited and particular 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 particular 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 like 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 writes3 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 is 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 is 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 undoubtedly 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 have yet to find where the author has been qualified to voice their opinion about their specific instance of karov l’malchus. I am hard-pressed to find a more significant 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 has never been an 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 would venture to suggest that the practical aspects of karov l’malchus has not gotten more than a hundred lines either.

That does not mean there is not anything dealt with on the topic. Rabbi Boruch Simon (Professor of Talmud at Yeshiva University) provides an overview of the topic.

The last time karov l’malchus and its halachic propriety were brought into question were 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 leads to a fascinating debate between Rabbis Michael Broyde and Kenneth Auman, which was later documented in Ḥakirah.

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 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. However, 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 is 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, whom singlehandedly undertook the task to resurrect the laws of mitzvot ha’teluyot ba’aretz.

More specifically, here are but a few of the many vital 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 are 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 President’s 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 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 U.S., 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 believe that karov l’malchus does not 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 members of Congress. That approached bore significant fruits for his interests through the years.

Conclusion

Karov l’malchus is both a fascinating and stimulating topic. It is an excellent topic for a speaker to engage an audience in a topical lecture. However, it will all be l’halacha v’lo l’maaseh. Those who want practical answers as to how the Kushner’s should act concerning karov l’malchus will run into a brick wall, as of this writing; the data set of literature for the question does not exist.

Moreover, 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.

Thank you to Rabbi Dovid Hirsch and Meyer Mandel for their comments and cogent insights.

I work in information security at Tapad. Write book reviews for the RSA blog, & a Founding member of the Cloud Security Alliance and Cybersecurity Canon.

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