President Trump’s recent sustained attacks on the federal judiciary and the media are at best ill-advised, and at worst pose a serious threat to American democracy, precisely because the judiciary and the media are two of our democracy’s most important pillars.
“Our liberty depends on the freedom of the press,” said Thomas Jefferson, who also said: “[W]ere it left to me to decide whether we should have a government without newspapers, or newspapers without a government, I should not hesitate a moment to prefer the latter.” Even after he entered elective office and came to despise much of what the press wrote about him, he nevertheless continued to defend its need to be free.
As for an independent judiciary being essential, we need look no further than Chief Justice John Roberts’ surprisingly blunt Thanksgiving Eve rebuke of the president, which he summed up with these words: “The independent judiciary is something we should all be thankful for.”
The law and religion scholar Dr. John Woodland Welch once wrote in the Brigham Young University Law Review: “The [Hebrew] Bible was nothing short of the underlying fabric upon which American society was founded.” What the Torah has to say, then, about a free press and an independent judiciary has great relevance.
The phrase “freedom of the press,” of course, appears nowhere in the Torah, but the concept of “need to know” on which it is based looms large. Jewish law considers it so important that it outweighs the rules regarding ona’at devarim, verbal wrongs. (See especially chapters 9 and 10 of the Laws of Gossip in Rabbi Yisrael Meir Kagan’s definitive 1873 work on verbal wrongs, Sefer Chofetz Chaim.)
The Torah’s overriding principle in this regard is the prohibition against placing a stumbling block before the blind (lifnei iver; see Leviticus 19:14), a general principle that goes beyond its simple meaning. As the Babylonian sage Samuel said, “It is forbidden to deceive people.” (See the Babylonian Talmud tractate Chulin 94a.)
“Need to know” is essential if our democracy is to be protected. As Abraham Lincoln reportedly put it, “Let them [the people] know the truth and the country will be safe.”
Sadly, politicians, especially these days, erect many stumbling blocks. The less we know about what they are doing, or why they are doing it, the better it is for them —and all too often, the worse it is for us.
The president’s defense of Saudi Arabia’s crown prince, accused of ordering the murder of journalist Jamal Khashoggi, comes to mind. Was the president defending U.S. interests in the Gulf, or his own business interests in Saudi Arabia? He refuses to release his business records, so we have no way of knowing which is correct.
Another example came on Thanksgiving eve, when Trump tweeted, somewhat triumphantly, “Brutal and Extended Cold Blast could shatter ALL RECORDS — Whatever happened to Global Warming?” The tweet was just the latest in well over one hundred Trump tweets claiming that global warming is a hoax.
This tweet, however, was meant as a deliberate “stumbling block.” Late on the day after Thanksgiving, when it was hoped no one was looking, the White House released a report prepared by 13 scientists inside and outside the administration, including from NASA, NOAA, and the Defense Department. That report minces no words. Climate change, it says, “presents growing challenges to human health and quality of life, the economy, and the natural systems that support us.” The U.S. economy will take a deep and serious blow, the report tells us, and premature deaths will rise, among other things.
The report had to be released; federal law requires one every four years. This year’s entry was supposed to be released in December. Its premature late Friday release on Thanksgiving weekend, along with Trump’s tweet, were designed to bury it.
Steven Milloy, who served on the president’s EPA transition team and now runs the website junkscience.com, said as much to the New York Times: “It’s better to just have it come out and get it over with — but do it on a day when nobody cares, and hope it gets swept away by the next day’s news.”
It did not get swept away, but only because there is a free press keeping its many eyes on what government is doing.
As for an independent judiciary, in the days before Thanksgiving and then on the holiday itself, Trump ramped up his attacks on it. That is what prompted the chief justice’s sharp rebuke.
Trump has made it clear that judicial independence is not to be tolerated. The Torah has a different view. According to Deuteronomy 16:18, judges “shall govern the people with due justice.” As the succeeding verses and others in Deuteronomy make clear, justice that’s not righteous, equitable, kind, virtuous, pure, and pious does not meet the “due justice” test.
So serious is the Torah’s insistence on this, says the Talmud, that “any judge who judges a true judgment truthfully…, the verse ascribes to him as if he became a partner to the Holy One, Blessed be He, in the act of Creation.” (See BT Shabbat 10a.)
Maimonides, the Rambam, summarized the Talmud’s interpretation of the Torah’s laws in his code, the Mishneh Torah. One law in particular stands out. In Chapter 2 of his volume on judges, Rambam writes, “A king of Israel must not be seated among the Sanhedrin, since it is unlawful to disagree with him or to defy him.”
In other words, if a court majority wanted to rule one way and the king another, the majority would have to follow him, thus causing the judges to pervert justice. The judges, however, are required to mete out “due justice,” and thus may not be influenced in any way — much less by trying to avoid the penalty of disobeying the king.
This law, however, also means the “king” must keep his views of judicial decisions to himself, even if he is not sitting on the bench, because that too would be an attempt at influencing the court. In the words of a sage named Mar ben Rav Ashi: “A man cannot see [anything] to his own disadvantage.” (See BT Shabbat 119a.) Lower court judges hoping to advance may think twice before ruling against a president who holds their advancement in his hand.
The sages of blessed memory took a very strict view about what they meant by what constitutes improper influence. Mar ben Rav Ashi, for example, was disqualifying himself from hearing a case involving a scholar he did not know. He did so because he had great respect for scholars in general, and feared that might influence his decision. Then there are these three examples cited by Rambam (23:3):
“It happened once that a judge was crossing a river on a small fishing boat, when a man stretched forth his hand and helped him get ashore. That man had a lawsuit, but the judge said to him, ‘I am disqualified from acting as judge in your suit.’ It also happened that a man once removed a bird’s feather from a judge’s cloak; another man once covered spittle in front of a judge. In each of these instances, the judge said, ‘I am barred from trying your case.’”
In Jewish law, there is only one king who has the right to influence the judiciary — the King of Kings. Says BT Sanhedrin 6b, for example, the “judges should know whom they are judging, and before Whom they are judging, and Who will ultimately exact payment from them.”
Rather than attacking the judiciary, Trump should echo the words spoken by King Jehoshaphat of Judah to his judges: “Consider what you are doing, for you judge not on behalf of man, but on behalf of the Lord, and He is with you when you pass judgment. Now let the dread of the Lord be upon you; act with care, for there is no injustice or favoritism or bribetaking with the Lord our God.” (See 2 Chronicles 19:6-7.)