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Defender of the Tribe
By ELLI WOHLGELERNTER
(January 22) - Though he's handled such high-profile clients as Richard Nixon, Jodie Foster and the Lubavitcher rebbe, top Washington lawyer Nathan Lewin sees his main mission as fighting for religious freedom.
He's an Orthodox Clarence Darrow, a defender of Jewish liberties that makes him not only one of the top attorneys in the United States, but perhaps its foremost legal advocate for religious freedom.
To give you an idea just how big Nathan Lewin is, when The Washingtonian magazine did a survey in 1992 on the 50 best lawyers in the capital, Nat Lewin was ranked No. 2, trailing only President Clinton's lawyer Robert Bennett.
He has represented a wide range of high-profile clients, among them Richard Nixon, former attorney general Ed Meese, Meir Kahane, Jonathan Pollard's Israeli handler Aviem Sella, Jodie Foster, and the Lubavitcher rebbe. Visiting Jerusalem last month to take part in the annual conference of the International Association of Jewish Lawyers and Jurists, the unpretentious Lewin sat down to talk about his life's work, especially his role as the preeminent defender of the tribe.
Of course, not all of his cases have involved Jews. The Foster case, for example, dealt with John Hinckley, who stalked the actress prior to shooting president Ronald Reagan and three other men in 1981.
"Hinckley's defense was, 'I was crazy about Jodie, and therefore I did all this sort of stuff,' so he was going to call her as a witness, and she was concerned about testifying in open court," says Lewin.
"She retained me, and I came up with the idea of having her testify on video. This was one of the very first times that this happened, to be shown to the jury at the trial.
"In the middle of the whole thing, Hinckley was so mad at what she was saying - she was testifying and I was standing next to her - and suddenly a pencil comes flying through the air. He was so angry - he was sitting at the defense table, he had guards all around him, and he threw it at her. It just missed me, went right between us."
Foster, Lewin says, "was very nice, and very modest, intellectual. I was sort of impressed with her."
His involvement with the Lubavitcher rebbe concerned the case of who owned the Lubavitch library. After World War II, the books had been sent to Brooklyn, where they lay in the basement at 770 Eastern Parkway for years, until it was discovered that a nephew of the rebbe had taken some 400 valuable old volumes and sold them in Switzerland and Israel.
Lewin was called in to handle the case - which he calls "maybe the most fascinating actual litigation I've ever had" - and got to meet with the rebbe on several occasions.
"The rebbe certainly was very impressive - I was astounded by how current he was. After I began working on the case, some of the hassidim tried to get me to come to a farbrengen. Then they told me that the rebbe said, 'Let the lawyer just be a lawyer - don't make a hassid out of the lawyer.' "
As for Nixon, Lewin met him following his resignation, when Lewin's firm was retained to deal with the issue of who owns the rights to the ex-president's papers and tapes.
The Supreme Court held it was constitutional for the government to take the papers, but left open the question whether Nixon had to be paid for them. A federal district judge in the District of Columbia ruled no, but Lewin got that decision overturned in the Court of Appeals, which ruled he did.
"The government dropped it, and in District Court there is now a trial going on which I am not involved in, to decide how much it's worth. We're arguing in the $50 to $60 million category, and with interest it comes out to far, far more."
When he met the former president, Lewin says, it was like meeting a caricature of the man. "I always thought when I was speaking to him that I was speaking to somebody who was trying to act like Richard Nixon. You never got a real sense of naturalness out of the man. He would talk, and you'd say, 'Hey, where is Richard Nixon? This is somebody trying to be Richard Nixon.' "
Lewin did pick up the requisite picture of Nixon with his arm around him, "which I keep in a paper bag at home and which I only show to Israelis," he says laughing. "They still love him."
Lewin, 62, is especially known for handling cases problematic for the Jewish community. The case of Bernard Bergman in the mid-1970s was a prime example because it involved an Orthodox rabbi/businessman accused of tax fraud in his nursing homes, as well as allegations that he was keeping his patients living in inhumane squalor. The case made front-page headlines in New York for months, tarnishing the Orthodox community.
"We ended up after long investigation having him plead guilty to the offense that he did commit - which was really a minor offense, it was not all the terrible stories - that he participated in the filing of a partnership return which failed to disclose certain partners in certain nursing homes: a partnership tax return that was false."
The federal judge determined a four-month sentence for that plea bargain, but the uproar in the media following the sentence led to another judge sentencing him to an additional one-year term.
"The truth is, the most extreme allegations against Bergman were not only not proven, I don't really think they were true. I told him before I took the case that I wanted come and see the nursing homes, so I went through his nursing homes. It's true that there were one or two that were closed by then, but in the ones he was running at the time that I represented him, I did not see anything wrong or bad. I'm not an expert, but I went through the nursing homes myself. And they seemed to me perfectly adequate.
"I think most of the allegations about Bergman that came out were from people who had financial disagreements with him. Bernard Bergman had built up a roster of enemies in his commercial transactions with other people, people had brought legal actions against him, or Din Torahs (a three-man Jewish court), and those people came out with extreme criticisms of Bergman. Everyone took advantage of that opportunity to jump on the man - not necessarily on the merits of what he was being investigated for, or what was being talked about."
He acknowledges that he took an "amazing amount of criticism" from the Jewish community for defending Bergman, but says "people don't understand what lawyers are supposed to do: people are accused of crimes, they're entitled to a defense. I think it is important that you are able to represent somebody, and do what you can for him. I think a lawyer's business is taking on cases for clients, and whether the clients are guilty or not, or how guilty they are, is not the lawyer's business to judge."
That, of course, is every defense lawyer's credo, and the statutory right of every accused person in the United States.
But it's not always a popular position for an Orthodox lawyer, like the recent publicized case of the Bobover hassid in Brooklyn sentenced to 27 months for laundering money through a yeshiva - money that turned out to have come from a Colombian drug ring.
"He denied that he knew it was drug money, and I don't believe that he knew it was drug money. He knew it was illegal money, but he had no reason to know it was drug money. There was a Jewish fellow from Colombia doing all kinds of other business deals with him, and asked him to launder this money. And he did, thinking it was maybe bribes or something else that was going to Colombian people in New York."
Lewin is acutely aware of his highly visible position as an Orthodox lawyer taking on high-profile cases that are often viewed as a terrible embarrassment to the community. It's not his reputation that he's concerned with, but the larger issue of mar'it ayin, how it would look to the community. For that reason, he says, he wouldn't have defended Yitzhak Rabin's assassin, Yigal Amir, for instance.
"One of the things you have to consider is how the public views your representation of a particular client, in terms of the community, and the whole appearance of the thing. If he would have been represented by a lawyer like me, it would have looked to the Israeli public as if the 'frum' community - the knitted kippa community - [legitimized Amir], and therefore he's gotten his lawyer to represent him.
"I would have been concerned about that, because there were and still are serious concerns about Israeli society being ripped apart by this whole event."
If Lewin is sensitive to how people look at the kippa on his head, perhaps it derives from his family background.
Lewin's grandfather, one of the founders of Aguda, was the rabbi of Rszezow, a town a couple of hours east of Cracow. He was also - together with Rabbi Meir Shapira, the head of Hachmei Lublin - a member of the Polish parliament, the Sejm.
"The difference between him and my grandfather, people said, was that Rav Shapira didn't know any Polish, so the only thing he said in the Sejm, besides voting, was, 'please open the window.' My grandfather apparently knew Polish brilliantly - people would come around to listen to him speak in Polish."
Lewin's father moved to Lodz to work in his father-in-law's mills, and followed his father into politics: he was elected before he was 30 as the youngest member of the city council, in 1935.
Lewin was born in Lodz on January 31, 1936, and when the Germans invaded Poland almost four years later, the family immediately moved north to the Lithuanian border.
"My father was planning to take the train back the next morning, but the Germans had moved so quickly in Poland that the train service was totally disrupted. He never could get a train back to Lodz, and that's what saved his life."
Carrying three-year-old Nat, the family smuggled its way through the woods across the border, arriving in Vilna. His mother, a Dutch citizen, looked for a way out. The result was historic.
"She managed to get the first, I think the very first, of those very famous visas by the Japanese consul in Kovno, [Sempo] Sugihara, that allowed us and many other Jews to travel across Russia to Japan, and from Japan to the United States."
On the list of visas Sugihara issued, Lewin's family is No. 15, 16, and 17, out of 1,600, "and the ones before us are plainly authentic, people who got legitimate visas to Japan, whereas ours were these transit visas supposedly to go through Japan to Curaçao."
Visas in hand, his mother went back to Vilna and told others, among them future Israeli politician Zerah Warhaftig, and he and others straightaway pursued this avenue of escape.
"In a biography of Sugihara by his widow, she remembers the date in August 1940 when the Jews lined up in front of the consulate. Our visa was issued two days before that date, so I think it's pretty clear that we were the first. I still have the document in my house in Washington."
When his father died two years ago and was buried on the Mount of Olives, the two main eulogies at the funeral were given by Warhaftig and long-time Aguda leader Menahem Porush.
Lewin and his family made their way across Siberia to Kobe, arriving in the US in March 1941, when Nat was five. The family settled on the West Side of Manhattan, where Lewin grew up in the sheltered world of the Orthodox Jewish community, attending Ramaz, Yeshiva High School and Yeshiva College before heading to Harvard Law School in 1957.
"The truth is, I really had no meaningful exchange with not only non-Jews, but non-religious Jews, until I went to Harvard."
The problem for Lewin was fitting in not only socially, but intellectually. Not that he wasn't smart enough, that's pretty obvious; but his mind had been sharpened by learning Gemara at yeshiva, and that had to change.
"I really had to unlearn the talmudic training in order to succeed at the Harvard Law School. I sat there in the class with 150 very smart people, and we'd read a decision from the Supreme Court of the United States, or the Supreme Court of Massachusetts, on some issue of property law or tort law. The main thing that you were learning was to criticize the case: 'Is the decision right? Raise your hand.'
"And I sat there - what do you mean is it right? This is a mishna, this is a halacha lemoshe misinai, what do you mean is it right? How am I supposed to decide whether it's right? I never learned that in yeshiva. That's crazy. That's not the law."
And when he tried to reconcile two seemingly contradictory cases, he'd get slapped down in class.
"I would raise my hand - the few times I'd talk in law school - I'd say 'no, the two cases are reconcilable because there's this little point here, and this point there,' which would be a terrific hiddush [new idea] in the yeshiva and the rebbe would say, Ah! Gevaldig! In law school, the professor - and I had that experience - would say, 'That's ridiculous, that's ridiculous,' and the whole class would laugh! And I'd say, what's going on here? At yeshiva I was being lauded for this, and here at the Harvard Law School they're laughing at me on account of this."
They're not laughing anymore. After graduating fifth in his class of 450 at Harvard - his lower-ranked classmates included Supreme Court Justice Antonin Scalia - Lewin went to work clerking first for the chief judge of the Second Circuit Court of Appeals, and then for Supreme Court Justice John Harlan.
Besides his practice, Lewin has taught at leading national law schools, including Harvard, Georgetown, Chicago and Columbia, and has written articles on the law and on the Supreme Court that have appeared in the major newspapers and periodicals in the US.
He has also argued 27 cases before the Supreme Court, and is friendly enough with the justices to have had Scalia and Stephen Breyer to his house to eat in his succa.
Of the 27 cases, 12 were when he worked for the Justice Department, after clerking for Harlan, and 15 have been argued as part of his non-criminal business: fighting for religious freedom.
Ask Lewin what criminal case he's proudest of, and the answer is none of them. It's not so much fighting for an individual Jew that he's proudest, but advocating for the rights of the collective Jewish people that has given him the greatest satisfaction.
Lewin was one of the founding members of the National Jewish Commission on Law and Public Affairs (COLPA), a volunteer group of attorneys and social scientists who have appeared, on behalf of Orthodox Jewish causes, in courts and before legislative and administrative bodies.
These are cases, to be sure, that are not embraced by the whole Jewish community, and Lewin frequently finds himself on opposite sides from the American Jewish Congress, American Jewish Committee, and the Anti-Defamation League, on the constitutional issue of separation of church and state.
But these are issues that he believes in passionately, as evidenced by the intensity in his voice as he argues their merits in our conversation.
One famous dispute, begun last year, is the so-called "Yale Five" case, involving five Orthodox students who are suing the university over its dormitory policy.
For reasons of religious sensibilities, the five had asked the university for permission not to live in a coed dorm, but the school refused, citing university policy that all freshmen and women must live in the dorms.
Lewin's argument is that there are all kinds of exceptions to the rule, like being married, or over 21, and that the university is discriminating against the students because the issue is religion - the Jewish religion.
"I think if this was a Buddhist or a Hindu, they would do it, but because the president of Yale is Jewish, the dean is Jewish, the dean of students is Jewish, they just said we're not going to allow these Jewish kids to do this, we're not going to accept it."
One of the Yale Five, Rachel Wohlgelernter, got around the rule on a technicality, which Lewin says is a perfect example "that proves the ridiculousness of the rule. She was going to get married in December, and she wrote to them and said. 'Can I be excused because I'm getting married in December.' And they said, 'Oh no, if you're not married as of the time that the semester begins, you gotta live in the dorms.'
"So they went and got an official marriage by a justice of the peace, even though they did not have a huppa or anything like that, and even though Yale knew that this was phoney, they weren't living together. That's the whole point: You can be married and a freshman student at Yale, and your spouse is going to school in Berkeley or Philadelphia, and you're exempt because you're married. What's marriagegot to do with living in the dorms, if you're not living with the spouse? There's much more basis to make an exemption for people who have a religious exemption, and say 'look, we can't do this, we can't live in these surroundings because of our religious convictions.' "
Because of her marriage, Wohlgelernter dropped out of the suit, and it has now become the Yale Four. Lewin lost the first round, but the case is now before the Second Circuit Court of Appeals, and arguments will probably be heard next month or in March.
For Lewin, the whole case involves his raison d'etre.
"The basic proposition is, why not accommodate religion? How can you discriminate against religion and say, look, we're not going to accept a religious objection. The whole thing, if you stand back from it, is kind of ridiculous from Yale's perspective to be making this kind of an issue about it."
Another well-known case involved the Satmar hassidic community in a town north of New York, Kiryas Joel, which had established a public school for its handicapped children.
"The real outrage about the Kiryas Joel case is that hassidim are being singled out for disabilities. If this were a community - and I said it in a brief in the Supreme Court - a community of Swedes, or vegetarians, and they formed their own village outside of Monroe, New York, and they said we want to have a public school for handicapped kids, everybody would say terrific, have your public school for handicapped kids, no problem.
"But because they are hassidic, because they're religious Jews and religion is an important part of their lives, people say, 'you can't have a handicapped school.' This school is not a religious school, it's a school for handicapped kids. The truth of the matter is - and they don't go around their community boasting about it - but the building doesn't have a mezuza, doesn't have anything that's religious about it.
"This is a situation where Orthodox Jews should not be discriminated against, shouldn't be disabled from doing something which they would be able to do if they were any other kind of group."
The Supreme Court ruled against Lewin, but he immediately helped draft a New York State bill that he thought would satisfy two dissenting justices who were the swing votes. That bill, which was passed into law by the State Legislature within days, was also ruled unconstitutional by the New York Court of Appeals. So Lewin drafted another bill, which is now before the Appeals Court for a third time, and which will be argued next month. The school, meanwhile, has not missed a day since it opened.
To Lewin, this case is just an illustration of the larger issue of reverse discrimination, of bending over backward against religion and religious people.
"Because they are Jews, and Orthodox Jews, and people who take religion seriously, they can't have a school for handicapped kids, which they would be able to have if what identified them, or made them a common group, was anything else other than religion."
A similar issue, he says, comes into play in another of his causes, the argument over the display of menoras in public places, which opponents argue again is a violation of separation of church and state.
"I have this constant debate with Alan Dershowitz, the American Jewish Congress, and many others. If it was any other form of symbol, other than a religious symbol, they'd be out there applauding it," Lewin says, his voice rising and speech accelerating with the passion of his convictions.
"If a private person wants to talk about religion in a public square, why can he talk about religion less than he can talk about anything else? We're saying the people who don't want to allow private menoras or private creches on public ground are trying to suppress religious speech on public property. And the court has said - we won this whole argument - that religious speech can't be treated worse."
Lewin won before the Supreme Court in a Pittsburgh case, 9 to 6 in the Sixth Circuit Court of Appeals in Grand Rapids, Michigan, and also in the Eleventh Circuit in Atlanta. To help buttress his case, Lewin says laughing, he offered the latter two a little limerick summing up his position:
There was once was a young rabbi of
who thought the constitution was odd
to permit all speech in a public place
on AIDS, abortion or race
but to prohibit anyone's mention of God.
"This is a recurrent theme with me, in my cases, and the things that I try to get across, which is, in the name of separation of church and state, [they end up] discriminating against religious people, and against religion."
In one of his cases, Lewin took on the Air Force after it refused to allow a psychologist to wear a kippa, and though he lost 5-4 in the Supreme Court, he subsequently helped draft congressional legislation that now forces the military to allow the wearing of kippot or neat and conservative articles of clothing that are required by religious observance.
What he's proudest of, he says, is the 1972 amendment to the Civil Rights Act of 1964 which he wrote, that defined religion as including religious practice. "In other words, you can't discriminate against somebody because he's a shomer Shabbos, because he's going to take off early on Friday, etc., you have to accommodate them for that."
Lewin also drafted the 1982 New York State get law, which made the giving of a get (halachic divorce) a condition for getting a civil divorce in New York, and which also received the approval of Rabbi Moshe Feinstein.
Lewin was also involved in the case of a Satmar hassid getting a divorce, "the first case that upheld that right to get a separation agreement clause that said the child would go to yeshiva, would have a kosher home, go to a kosher summer camp, and so on."
The fight for religious freedom, Lewin says, is "a constant battle, and the Yale case is an illustration of that. We say in our brief, 'look, this is discrimination of the one remaining kind that is still countenanced in the United States, which is discrimination against people who take their faith seriously.' "
His detractorsHis detractors say that what he's doing is protecting the rights of all the crazy fundamentalists. Lewin pleads guilty.
"I say, all right, so I'm ready to protect the rights of the fundamentalists. I think that's right, I think that's what freedom of religion means. I protect my right to do things which people think are strange, whether it means having a particular diet, whether it means wearing something on my head, or not being able to work at certain hours on certain days of the week - but that means you protect religious rights, and you protect the rights of the people who believe that seriously."
Hassidim, he says, are in particular a group who take their religion seriously, and who by their very presence encounter prejudice and animosity in the legal system, which he sees happening with increased frequency.
"The one remaining helpless community, as it were, now in New York is the hassidic community. It's now open season on hassidim. I've had cases where I've represented Orthodox Jews, or hassidim, or people wearing yarmulkes and beards in federal court in New York, and discovered incredible hostility against hassidim among people in New York, including Jews in New York. The whole system is weighted so heavily against them, it's really unfair."
On the one hand, he says, it's important for the religious community to realize how important it is that they stay away from anything that can even be questionable in terms of financial dealings.
"But on the other side of the coin is the readiness now of prosecuting authorities in New York to jump on hassidim and frum people in that community for the very slightest, most ridiculous kind of violation.
"The reactions I've gotten from prosecutors in New York on cases which years ago I would say, 'C'mon, you can't possibly think this is the basis for a criminal prosecution,' everybody would agree it's just not worth bringing, now they say, 'If he's crossed the line in any way, there's not going to be any defense for it, period. No defense of good faith, no defense of trying - if he's crossed the line, we're going to throw the book at him.' I've seen that in a number of cases."
Lewin says he's heard various explanations for it, "some being, to be put in the most extreme way, 'this is payback times for David Dinkins,' " a reference to the black former mayor of New York, who was ousted after one term for what many said was his handling of the riots in Crown Heights, following the accidental road death of a black child by a Lubavitch hassid.
When Lewin wants to take a break from his practice, he comes with his wife, Rikki, to stay for two to three months a year in Jerusalem, where he owns an apartment in David's Village and displays his collection of old maps. Well, it's not really a vacation.
"I come here and I work from here," he says with a shrug.
"I write briefs from here, I get faxes every night, I'm on the phone till 12 or 1 in the morning. So all these trips are not vacation trips, they end up being working vacations."
He also has taken on cases from here, representing the family of David Boim, the American who was killed in a terrorist attack near Beit El in 1996, and David Miller, one of the boys injured in the 1997 Ben-Yehuda Street bombing.
"I've been pressing for an indictment against Amjad Hanawi, who murdered Boim, and I'm going to bring a civil suit for Miller and Boim in the United States. I've been talking to justice and other officials here, getting together material so as to bring the case, and decide exactly where to bring it, and exactly against whom to bring it. It won't be only against Hanawi, who killed Boim, you want to get the people who were involved with it, whether it was simply Hamas, whether it was the Palestinian Authority, whether there is some way in which this becomes a broader conspiracy."
Lewin's sterling reputation has made him an obvious possibility for a federal judgeship - possibly even in the highest court in the land. "If a president truly were looking for the most qualified person to sit on the Supreme Court," declared The Washingtonian, "Nat Lewin would have been chosen long ago."
He modestly declines to speculate on the possibility. "My law practice is so interesting anyway" he says.
If Lewin did become a judge, his role as a defender of Jewish causes might be difficult to fill.
"I don't see other generations of Jewish lawyers doing this," he says. "Somehow the other Orthodox lawyers who have succeeded in practice have gone and become tax lawyers, security lawyers, corporate lawyers. Where are the litigators in the Orthodox community who are going to fight these cases?"
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