The ugly face of “Jew on Jew” criticism

The Trump presidency, at least technically, is over. Trump’s return to power — as president — is unlikely, one hopes. The impeachment trial acquittal, a preordained result, was largely beside the point. Trump had more than sufficient Senate votes in his hip pocket going in, and so whom he chose as lawyers didn’t really matter all that much. He probably could have outright defaulted, or picked lawyers from the yellows pages (which it almost seems he did in two instances) and still have won. He simply didn’t require the quality of legal talent that one would expect for a former president.

But Trump chose, for reasons known only to him, a kippah-wearing Orthodox Jew as one of the three. Maybe even his lead lawyer, as David Schoen publicly maintains.  No big deal, and it shouldn’t be.  And even though Trump’s base, many Evangelicals among them, largely applaud Trump’s stated support for Israel based upon “End of Days” apocalyptic beliefs, they’re not at the same time necessarily enthusiastic about Jews generally, especially those who wear yarmulkes.

Yet, we heard no objections from the gentile world about how Schoen perceived his religious obligations regarding the trial. First, by asking the Senate to recess the trial so that he might observe Shabbat (which request was quickly granted). And, second, reversing his request, asking that the Senate proceed without him if the case lasted past Friday afternoon. Nor was there critical commentary from the secular world over Schoen deciding not to wear his kippah on the Senate floor but, instead, putting his hand over his head each time he took a sip from his water bottle.

Challenges over the niceties of Schoen’s choices in his religious observances, however, seemed almost compulsory for the Jewish media. It somehow determined that it had the “right” — maybe the “duty” as inspector general or ombudsman of American Jewish life — to presume that that “responsibility,” for lack of a better word, belonged to it exclusively.

Getting to the merits, Trump is a hideous figure. Still, I would defend to the death his right to retain his choice of counsel — even to defend him on charges alleging the grotesque insurrection he inspired against American democracy. Even more so, I would take up metaphorical arms to defend the right of the David Schoens of the world  — although I’m surely not a fan — to accept that retention, and to “perform” as Trump’s gladiator at any tribunal. That is the essence of the American legal system, and same rules of engagement would apply if Schoen’s client were Jeffrey Dahmer.

Yes, it is quite fair to criticize Schoen for the particular defense he presented (presumably orchestrated by his overly controlling client). And I do; but hardly on religious grounds.  Still, some actually have the audacity to claim that, an observant Jew defending Trump and what Trump did on January 6 (and in its lead up), somehow defied Schoen’s religious obligations.  How audacious is that? Indeed, Schoen’s defense, in my considered judgment, in no way whatsoever violated his obligations as an observant Jew who was appearing as an attorney for a client before a secular tribunal.

It was at its worst in the remarks of Jake Tapper, the ordinarily thoughtful CNN anchor and commentator, who is an unabashed Trump detractor. Indeed, so angry at Trump, Tapper decided to pursue his onslaught against Trump’s “orthodox Jewish” lawyer too – soon after Schoen withdrew from his Senate advocacy duties as candle lighting time approached.  Did I mention that Tapper is Jewish?

Employing his high tech pulpit – of twitter — Tapper’s tweet insinuated that Schoen, in representing Trump, was violating the Torah (Tapper’s tweet, ironically, was posted after Shabbat began that day). Noting that Schoen had “left the Senate to observe the Sabbath, Tapper astonishingly wrote: “At synagogue tomorrow, he [Schoen] will hear the reading from the Torah of: Mishpatim. Rules.”  Tapper cited Exodus 21:1 – 24:18, and specifically 23:1,2: “You shall not spread false report. You shall not join hands with a wicked man to be a malicious witness. You shall not fall in with the many to do evil, nor shall you bear false witness in a lawsuit, siding with the many, so as to pervert justice.”

Is it, indeed, a fair interpretation of this Exodus injunction that it also bars an individual from representing a “wicked man” by representing him as an attorney before a secular tribunal? This, even though lawyers – and, indeed, secular, non-theistic, society — aren’t mentioned whatsoever in the Book of Exodus or, for that matter, in the Five Books of Moses. But let’s give that one to Tapper.

Now, I’m certainly not saying that criticizing a lawyer isn’t fair game — I’m a criminal lawyer and have heard such criticism frequently (“How could you represent that guy?”) Still, isn’t Tapper, in his tweet, ignoring the secular attorney’s duty to a client, or the ethics of secular lawyering, by arguing that Schoen was basically a hypocrite in choosing to represent a “wicked”, arguably guilty, man? But, most important, Tapper seems totally comfortable with this type of personal attack that suggests hypocrisy on Schoen’s part — likely because Tapper is himself Jewish. its ugly head.

True, Tapper might have invoked a Biblical injunction about representing a “wicked man” (assuming, again, that the injunction applies) if Trump’s lawyer were an observant Christian who would also adhere to the Bible’s commands. But the Christian lawyer wouldn’t have been wearing his religion on his sleeve. Or on his head! Tapper, enthusiastic to attack Trump (he, indeed, warranting attack), thus takes a pot shot at his lawyer: a fellow (but kippah-wearing) Jew.

Tapper, by the way, doesn’t stand alone here. I have had occasion to recoil at the criticism of Schoen from a number of individuals I know personally – they, too, employ a judgmental tone in seeing Schoen representing Trump, whom they too despise, as totally unacceptable (albeit they don’t possess Tapper’s unique bully pulpit in saying so). I’m sure I could find a Biblical verse that would denounce this deriding of Schoen for representing Trump as they have privately chosen to do (were my skillset at that better). Still, if I were to wag my finger at their conduct in that way by invoking religious principles, wouldn’t I be as guilty as was Tapper (and these less public Schoen critics)?

I don’t, for a second, think that observant Jews, in particular, who behave badly or take untenable positions in public life are beyond criticism from us. They too should suffer the same slings and arrows as the rest of us. Maybe more so. But not because they’re Jewish, or observant Jews.  That said, when we, as Jews, choose to criticize “our own” (in particular), we shouldn’t feel liberated to color freely over the line simply because we ethnically share bloodlines with those whom we choose to attack.

Tapper, in fact, did precisely that. Having done so, he warrants criticism by Jews in particular for his oh-so-judgmental attack (as a fellow Jew) on Schoen. Lest it go unsaid, I would be outraged at that brand of hypocrisy no matter the assailant’s religion or that of whom he chose to attack that way.

About the Author
Joel Cohen is a white-collar criminal defense lawyer at Stroock in New York and previously a prosecutor. He speaks and writes on law, ethics and policy (NY Law Journal, The Hill and Law & Crime). He teaches a course on "How Judges Decide" at Fordham Law School and Cardozo Law School. He has published “Truth Be Veiled,” “Blindfolds Off: Judges on How They Decide” and his latest book, "I Swear: The Meaning of an Oath," as well as works of Biblical fiction including “Moses: A Memoir.” Dale J. Degenshein assists in preparing the articles on this blog.The opinions expressed in this article are not necessarily those of the Stroock firm or its lawyers.