Understanding the Water Issue: Halachic Analysis and More

Understanding the Water Issue: Halachic Analysis and More 1

By Rabbi Yair Hoffman for 5tjt.com

There is recent issue that has made the headlines.  While in the Senate, David Schoen, the frum lawyer representing former President Trump, drank from an unmarked water bottle and placed his hand over his head in place of a Yarmulkah.

Headlines across the country and throughout Israel have asked why he did it.  Religious Jews have pointed out that placing one’s own hand on one’s head does not work in place of a Yarmulkah.  So what is the halacha?


There is a debate between the Trumas HaDeshen (Siman 10) and the Maharshal (in responsa #72) whether one may rely upon one’s own hand on one’s head to recite a blessing or one may only rely on a friend’s hand but not one’s 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 legalistic mind.

Imagine it was you.  You are speaking before the representatives of all fifty states in the seat of government.  You are talking and talking.  And you need water.

Is this not what we would call a Shaas hadchak – a pressing situation, where we can perhaps be lenient?  Can’t under such circumstances rely upon the view of the Maharshal?  Is there no precedence to this concept?

Enter the Chofetz Chaim.  Not in his Mishna Brurah, but in his Sha’ar HaTziyun to Siman 2 – letter 24.

There, 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 way back in this Mishna Brurah in siman bais.


We can perhaps further buttress David Schoen’s leniency with the view of the Vilna Gaon in Siman 8:6 – that when one will possibly lose out on a bracha such as that on thunder and lightning – one may be lenient and rely on the Rif’s view that a bracha 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 Mishna Brurah, unless the Mishna Brurah cites him – but it certainly could be a contributing point (a s’nif lehakel).

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There are those who have suggested that David Schoen’s covering of his head was merely a reflex action of a person wanting to ensure that his Yarmulkah not fall off.  This may be a possibility.  But let’s look at some other aspects of what he has done.


The preliminaries to the impeachment trial of our former president has led to probably one of the greatest sanctifications of Hashem’s Name in American history – the fact that an observant Jew would give up representing the former president on account of Shabbos.

Sanctifying Hashem’s Name is the apogee of serving Hashem.  What David Schoen has done is reminiscent of what Chazzan Yossele Rosenblatt did in 1918, but even more.  Chazzan Rosenblatt refused the offer of the Chicago Opera Company of $1,000 per night, and then for $3000 per night.  It would have required him to perform on Shabbos.

David Schoen did even more.  He refused an offer that would have put him in the national spotlight – all because of Shmiras Shabbos.   The senate agreed to delay the trial as it approached Friday sundown.


And then, the news reports, Schoen was able to work out an alternative arrangement with the other lawyers.  The part that he would present, would go first and the other lawyers would handle the rest.  This new arrangement would allow Mr. Schoen to be in concert with another halacha.

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There is a Gemorah in Psachim (50b) which states that one who performs work on Friday from Mincha time onward will not see blessing from it.  Even if he will profit from what he is doing – he will incur a loss elsewhere.


There is a debate as to whether this halacha is an actual prohibition or just a fact (and perhaps a light curse).  The Chofetz Chaim in his Mishna Brurah (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 that it is so that one will not risk violation of 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 Melacha (creative acts) or even just plain working.  The Eliyahu Rabba and Nehar Shalom forbid, while the Mogain Avrohom is lenient.  The custom is to be lenient, but some are stringent.  David Schoen could have simply relied on the Mogain Avrohom before he had negotiated the second agreement.


There is another debate as to what “after Mincha time” actually means.  Is it Mincha Ketana or is it Mincha Gedolah?  Is it nine and a half hours after sunrise (Mincha Ketana) or six and a half hours after sunrise (Mincha Gedolah)?

David Schoen, in his negotiation as to the timing of his role – performed another Kiddush Hashem – fulfilling this halacha as well.

Understanding the Water Issue: Halachic Analysis and More 2

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