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With Jewish lawyers on each side, the impeachment trial feels Talmudic

No president has ever been impeached twice. Nor has a president ever been impeached after leaving office. This is a historic moment that raises a lot of questions — very precise constitutional questions whose answers have the power to set new precedents going forward.

Interpreting the Constitution requires as much philosophical argument as law, and there are different schools of thought as to how to approach the text. The arguments that have been presented by Rep. Jamie Raskin, arguing for impeachment, and David Schoen, defending Trump, recall a style of textual exegesis that is probably familiar to the two lawyers, both of whom are Jewish.

Michael Boyde, a professor of law at Emory University and rabbi emeritus at Young Israel in Atlanta, said that interpreting Constitutional clauses about impeachment and free speech requires a four-pronged approach, incorporating text, precedent, logic and the “needs of the times.” These considerations keep the process balanced, ensuring that current events or precedent don’t overwhelm the text, but also that the text conforms to the realities of history.

That’s surprisingly similar to the method of interpreting text through a rabbinical framework known by the acronym PaRDeS.

Pardes means “orchard” in Hebrew, and is used as a metaphor for the wealth of knowledge that can be found in the study and interpretation of Torah. The capitalized letters each stand for a different step of exegesis.

Peshat, which means “simple,” is the straightforward, literal interpretation of the text. Remez, which translates to “hints,” is the more allegorical meaning of the words. Drash refers to seeking and inquiring, and involves comparing different examples to better understand the text. The last, Sod, means “secret”; this is the esoteric interpretation of the text.

The rabbinical framework doesn’t perfectly map onto Broyde’s framework for approaching the Constitution. For one, the Torah doesn’t change, while the Constitution does, via amendments. And we rarely look to the Constitution for esoteric meaning. But the general goal is the same — to understand the meaning behind the words of an often-ambiguous text in a way that makes it relevant to a world very different from the one in which it was written.

“I think that the rabbis developed excellent tools for interpreting static texts, like the Constitution,” said Broyde. “The reason you can analogize Torah to the Constitution is because the text is functionally hard to edit, or in the case of the Torah statutorily prohibited to edit.”

In the case of Trump’s impeachment, there are two Constitutional questions at hand. First, whether the definition of impeachment includes a president who has already left office — the Senate affirmed it does on Tuesday — and second, whether Trump’s remarks, telling his supporters to “fight like hell” hours before the attack on the Capitol, are protected free speech under the First Amendment.

Tuesday’s arguments nitpicked at the Constitution’s language in a particularly Talmudic way. Schoen brought up due process, and quibbled over the article used to describe “president” in the Constitution’s description of impeachment. (The passage readsthe President” instead of “a president,” implying, Schoen argued, that it only refers to the sitting president). Raskin’s argument emphasized precedent, arguing that allowing Trump to avoid charges would create a “January exemption,” allowing future presidents nearing the end of their term to do nearly anything without repercussions.

Wednesday arguments took on free speech protections under the First Amendment. Raskin, a former constitutional law professor, argued that the president is not a private citizen, and thus Trump’s speech is not protected in the same way. Additionally, he argued that Trump was inciting violence, using the common example of shouting fire in a crowded building, which is not protected speech. Trump’s defense is expected to argue that the First Amendment protects Trump’s statements as political speech.

Raskin won the first battle over textual interpretation; the Senate voted to allow the impeachment trial to go forward. But Schoen won his own textual battle — a more Jewish one — after Twitter debated whether his hand sufficed as a head covering when he was drinking water. It seems, in the end, that he was using a bottle cap – a very Talmudic solution.

Mira Fox is a fellow at the Forward. Contact her at [email protected] or find her on Twitter @miraefox.

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