Full disclosure: This odd topic was presented this past leil Shavuos at my shul’s all-night learning. Here’s the background.
For many years, I presented four or five shiurim all night, along with many people who chose chavrusa learning or Tikkun Leil Shavuos. For the past few years, I have given only the last shiur, with the earlier ones being presented by various members of the shul, kollel, or one of my sons. This has provided more variety, excitement and opportunity for harbotzas haTorah. For my own contribution, since I would be starting at about 4 a.m., when eyes are gradually closing and yawns are rampant, I have tried to discover something current or controversial but practical that would keep people interested and, most important, awake. After the guilty verdict on the former president, I was outraged but also intrigued. It seemed to me that this was an ideal teaching moment to contrast the current lawfare and weaponizing of the justice system with the objective and much saner one taught by the Torah. The following is a synopsis of the shiur, plus a few thoughts in retrospect and comments by listeners.
First of all, as someone asked me, “Does any of this make any sense? You know very well that human beings making it up as they go along are no match for a divinely created system.”
Secondly, the premise is false, since gentiles do not know the Torah and could not follow its guidelines and dictates.
Here I was able to explain that this is a false complaint. It is well known that all of mankind is obligated to obey the Seven Noachide Laws (Sanhedrin 56a). Most of the seven are negatives, such as not stealing or committing murder. However, one of them is called dinim, meaning laws. This refers to the basic rules of a civilized society that are usually referred to as “law and order.” There is a basic disagreement in the Gemara there, followed by the Gaonim (see She’iltos D’Rav Achai Gaon No. 2, with He’emek Shailah), Rishonim (see Me’iri, Sanhedrin) and Acharonim (see Teshuvos Rama No.10; Chasam Sofer 6:14) about the nature of these dinim. Are they the Torah’s laws, as enumerated in Parshas Mishpotim, Shoftim, etc. and interpreted by Chazal? Perhaps, however, they only need to be universally held truths and guidelines which will keep society reasonably stable, honest and functional.
If we take the position that even the gentiles must basically follow Torah laws, it makes sense to consider whether or not the court verdict followed what the Torah would have recommended. Since most of western society considers its laws and procedures to be founded upon the so-called Judeo-Christian model, it behooves us to know if today’s court procedures do or don’t adhere to the ancient teachings. First, a few facts and figures of our own:
American criminal law calls for a prosecutor to present charges and the accused must defend himself. Apparently, the district attorney has the right to choose the court or place where the trial will occur. Jewish law dictates that the accused has the right to choose the location or venue, so that he will receive a fair trial (See Igros Moshe, Choshen Mishpot 40:5). In Mr. Trump’s case, the deck has, so to speak, been stacked against him from the beginning, since New York State and city has voted consistently against him overwhelmingly. He is not liked here and would never have been forced by a bais din to appear in such a location. In point of fact, even secular law often allows for a change of venue when there is a sense that the defendant cannot obtain a fair trial in a certain location.
Furthermore, although Jewish Law does not call for a prosecutor at all, since American law does, he should abide, allowing for our premise or conceit, by the laws of the Torah. This means that he cannot be an enemy or have previously decided what the misdemeanor will be. It is clear to every intelligent human being that the Manhattan D.A., Alvin A. Bragg, announced when he was running for this office that he plans to prosecute and convict Donald Trump of crimes that will put him in prison. For us, this would have been a no-brainer. He should have recused himself or been rejected from having anything to do with the case. In fact, until and including the trial itself, the exact infraction of which he was being accused remains unclear. The only thing that was very obvious was that Mr. Bragg intended to find something for which to accuse Mr. Trump. Eventually, he did discover class E felonies, but that was almost an afterthought. The point was always to convict Donald Trump of something, an attitude that could not have lasted a moment in any valid bais din. This would seem to be immoral and unethical according to both Torah and secular law. The same has been clearly true of the judge, Mr. Juan M. Merchan, who did not follow standard court procedures and leaned heavily upon one side of the scales of justice, which has always been depicted as being blind to any political bias.
Finally, just to complete the basic problematic picture of this trial according to the Torah is the nature of the most important witness. Sadly, he is a fellow Jew, but the laws of the Torah surely apply to him. The key witness was Michael D. Cohen, who has already pled guilty for lying to Congress and stole between $30,000 and $60,000 from his boss at the time and current defendant, Donald Trump. He, too, expressed his hatred and contempt for Mr. Trump and so was ineligible to testify, in addition to his own record as a liar and a thief. On multiple occasions, Judge Merchan exhibited hostility and disdain for the defendant, to the point of issuing a gag order against him, in effect taking away his ability to defend himself against the charges.
Now let us look a bit more specifically at the halacha. First of all, the Shulchan Aruch, universally accepted Code of Jewish Law, rules that “someone who is an enemy of the accused or wishes him harm (mevakesh ra’aso) is disqualified from being a judge in his case” (Choshen Mishpot 7:7). The Shulchan Aruch (Choshen Mishpot 19) declares that an enemy cannot testify, and the Chasam Sofer (Teshuvos Choshen Mishpot 162) rules that even when someone with enmity is allowed to testify, an absolute enemy (sonei gomur) is disqualified from any testimony in the matter. Interestingly, Tosafos (Yevamos 94a) adds that although both close friends and enemies are forbidden from testifying, the power of hatred to distort the truth is much greater than that of friendship or love. No matter what political side one chooses in the current debate, it must be obvious to all that from judge to D.A. to witnesses, all were sworn enemies of Mr. Trump and what he stands for.
Another interesting insight into halachic credibility and eligibility in criminal law relates to testimony about murder. The Rama and commentaries (see Sma and Shach to No. 33) teach that the relatives of a murder victim or even the victim himself, unless he is mortally wounded, may testify against the murderer because “they have nothing to gain or lose by his execution.” This teaches us that it is only personal gain – monetary or political – that prohibits someone from testifying. In Mr. Trump’s case, all the players have indicated their purpose and glee in destroying him. Mr. Bragg’s giant smile and gloating at the end of the trial were the best poof that this “triumph” was totally personal and mattered to him and his life’s goals tremendously. Another more subtle category of disqualification by the Torah to testify is called bezuyim (Choshen Mishpot 34:18). This is defined by the commentaries (Rashi, Sma) as “those who have no shame.” In my humble opinion, all of the above “bad players” have exhibited this trait.
Finally, I would like to quote from one of the most eloquent contemporary poskim about the distinction between a “Torah enemy” and a political or personal enemy. Rav Yitzchok Zilberstein discusses a fascinating issue about enemies. He was asked a poignant question about a dangerous situation that occurred with an Israeli soldier. He was in a jungle outside of Eretz Yisroel with his platoon when a deadly snake wrapped itself around his leg. He called out for help, but his friends were afraid to move for fear of antagonizing the snake to bite, which could mean instant death.
Suddenly, the soldier’s commanding officer arrived on the scene with an expert marksman who was loaded and ready to shoot the snake. The commander ordered the sniper to shoot quickly, aiming for the snake’s head. However, ironically, the victim cried out not to allow this man to shoot, since this was his personal enemy. He was afraid that his enemy would not aim properly to save him. There was another, less emotionally involved marksman nearby, but his expertise was inferior to that of the enemy. Apparently, there was enough time to ask a shailah and Rav Zilberstein was asked to rule if the enemy or the lesser marksman should shoot.
Like us, Rav Zilberstein first quoted from Chazal (Kesubos 105b) that an enemy cannot be trusted to perform objectively because of his hatred. But he also remembered (later recounted in greater detail than the quick thinking at the time) that Rav Yonasan Eibeshutz (Tumim 7:9) notes that it is generally hard to understand how a dayan (judge) can be an enemy. The Torah forbids us from hating a fellow Jew. He answers that it must be that he once saw him doing a sin, for which there is a mitzvah to hate him (see Pesochim 113b). Therefore, if a judge hates someone for the correct reason that he is a transgressor, he may adjudicate his case because “it is nothing personal.” The only issue that comes up where a decision is needed is where there are reasons to dislike a person that are personal and he also saw him sinning. The answer is that only a proper “Torah enemy” can testify, but if there is even a hint of personal animus, he may not.
Based upon a similar ruling by Rav Elyashiv, Rav Zilberstein ruled that the enemy marksman should be allowed to shoot. Rav Elyashiv had quoted from the Gemara in Bava Kamma (85a) that if a physician injured someone, the victim does not have to accept the doctor’s offer to cure him, but compared to a doctor from “out of town,” the local doctor is better because he wishes to maintain his good reputation and would not willingly cause someone’s death. He concludes that the same is with the sharpshooting enemy. He is being watched closely by his friends and would not jeopardize his own reputation to commit murder right in front of them (Chashukei Chemed, page 639, to Kesubos 105b).
However, in another volume (Chashukei Chemed, Bava Basra, page 581), he offers another insight that can help us with our “trial Torah.” He cites a question from the Chavos Yair (Hashmatah to 62): How can we ever judge anybody? Since the Torah tells us to love every Jew like ourselves, every judge should have to recuse himself every time. His answer, as earlier, is that only personal enmity is forbidden by the Torah, because it distorts our ability to think objectively. But if the Torah has declared that we must hate someone, that is a holy, celestial hatred and would not corrupt our objectivity.
We have thus arrived at the lehavdil bein Yisroel l’amim. Yes, it is true that Alvin Bragg, Juan Merchan and Michael Cohen hate Donald Trump and should not have any hand in his verdict. But if true tzaddikim are acting as judges or witnesses and have only a righteous enmity toward someone because he has transgressed one of Hashem’s laws, they may testify and make decisions because their intentions are pure and no personal enmity will enter into their deliberations.
Of course, all of this is hypothetical and will not happen. However, even just the thought experiment should demonstrate how far the current judicial process has deviated from the ideal.
May we soon reach the time when only the true Judge will adjudicate all of our questions.
