By Rabbi Yair Hoffman
David Schoen covers his head while sipping water in the Senate

The preliminaries to the impeachment trial of our former president has led to one of the greatest sanctifications of Hashem’s Name in American history—the fact that, on account of Shabbos, an observant Jew would pass up the opportunity to represent the former president.

Sanctifying Hashem’s Name is the apogee of serving Hashem. David Schoen’s actions are reminiscent of what Chazzan Yossele Rosenblatt did in 1918. Chazzan Rosenblatt refused the Chicago Opera Company’s offer of $1,000 per night, and then $3,000 per night, as he would have been required to perform on Shabbos.

Out of concern for shemiras Shabbos, David Schoen requested that the impeachment trial be put on hold over Shabbos, and the Senate agreed to accommodate. Without that accommodation, he was unwilling to accept a position that would have put him in the national spotlight, as it would have created a conflict with his Shabbos observance.

However, instead, Schoen was able to work out an alternative arrangement with the other lawyers. He would present first, and the other lawyers would handle the rest. This new arrangement would allow Mr. Schoen to be in concert with another halachah.

Performing Work After Friday Minchah

The Gemara in Pesachim (50b) states that one who performs work on Friday from Minchah time onward will not see blessing from it. Even if he profits from what he is doing, he will incur a loss elsewhere.

There is a debate as to whether this halachah is an actual prohibition or just a fact (and perhaps a light curse). The Chofetz Chaim in his Mishnah Berurah (251:5) rules that it is a prohibition. Also, what is the reason for this whole concept? Some say that it is on account of kavod Shabbos—that a person must leave time to adequately honor the Shabbos. Others hold it is so that one will not risk violating the Shabbos. The jury is still out on that debate (no pun intended).

There is yet another debate as to whether it applies to actual melachah (creative acts) or even just plain working. The Eliyahu Rabbah and Nehar Shalom forbid, while the Magen Avraham is lenient. The custom is to be lenient, but some are stringent. David Schoen could have simply relied on the Magen Avraham before he negotiated the second agreement.

What does Minchah time mean? Is it Minchah Ketanah or is it Minchah Gedolah? Is it nine and a half hours after sunrise (Minchah Ketanah) or six and a half hours after sunrise (Minchah Gedolah)?

David Schoen, in his negotiation as to the timing of his role performed another kiddush Hashem, fulfilling this halachah as well.

Drinking Water

Another one of David Schoen’s actions has made headlines. While in the Senate, David Schoen drank from a water bottle and put his hand over his head in place of a yarmulke.

There is a debate between the Trumas HaDeshen (Siman 10) and the Maharshal (in responsum #72) whether one may rely upon one’s own hand on one’s head to recite a blessing or if one may only rely on a friend’s hand but not his own. The Shulchan Aruch 91:4 clearly rules like the Trumas HaDeshen. So, at first glance, it would seem that David Schoen may have erred in regard to the water issue.

But not so fast. There is a reason that former president Donald Trump picked David Schoen as a lawyer. He has, undoubtedly, a brilliant legal mind.

Imagine that you are speaking before the representatives of all 50 states in the seat of government. You are talking and talking. And you need water. Is this not what we would call a sha’as ha’d’chak, a pressing situation, where perhaps we can be lenient? Under such circumstances, can’t we rely upon the view of the Maharshal? Is there no precedent to this concept?

In his Sha’ar HaTziyun (Siman 2, letter 24), the Chofetz Chaim cites the view of the Eliyahu Rabbah that during a pressing situation one may rely on the view of the Maharshal! True, it may not fit into the Shulchan Aruch’s view in 91:4, but we do find it in this Mishnah Berurah in siman beis.

We can perhaps further buttress David Schoen’s leniency with the view of the Vilna Gaon (Siman 8:6) that when one will possibly miss the opportunity to make a berachah (for example, such as that on thunder and lightning) one may be lenient and rely on the Rif’s view that a berachah can be said without covering the head at all. Generally speaking, only select individuals follow the view of the Vilna Gaon when his words are in contrast to the Shulchan Aruch and Mishnah Berurah, unless the Mishnah Berurah cites him, but it certainly could be a contributing point (a s’nif lehakel).

There are those who have suggested that David Schoen’s covering his head was merely a reflex action of a person wanting to ensure that his yarmulke does not fall off. That’s a possibility. With no further evidence, however, it could just be chalked up to David Schoen’s record of three for three.

The author can be reached at Yairhoffman2@gmail.com. Read more of Rabbi Hoffman’s articles at 5TJT.com.

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