Nathan Lewin: Reply to Rabbi Shmuel Herzfeld


agri3.jpgIn a front-page article asserting that minors had been hired to work in an Iowa kosher meat-packing plant and in an editorial calling the plant the modern equivalent of Upton Sinclair’s “The Jungle,” the New York Times joined the media frenzy that has, over the past two months, with very little basis in fact, pilloried AgriProcessors, the country’s leading kosher slaughterer and packer of beef, and driven federal and local law-enforcement personnel to threaten dire consequences to its owner and employees. Insult was heaped on injury when an Orthodox rabbi in Washington, D.C., joined the vigilantes and published an Op-Ed piece in the Times of August 6, claiming that the news accounts “call into question whether the food processed in the plant qualifies as kosher.”

This nationally published challenge to the kashruth of the AgriProcessor product contradicts the unanimous opinion of highly respected and universally recognized kashruth-certifying agencies that have repeatedly endorsed – even while the media attack was ongoing — the ritual acceptability of AgriProcessors’ product. Nonetheless, Rabbi Shmuel Herzfeld of Ohev Sholom Synagogue in Washington (where the author of this response has been a member for the past 40 years) – a young rabbi who has achieved great success in reviving, for Jewish residents, a neighborhood that had been abandoned by its Jewish population and has electrified the entire Washington Jewish community with innovative programs – raised “questions” about AgriProcessors’ kashruth in this widely read forum.

Rabbi Herzfeld’s column cites the following three grounds for questioning the religious suitability of AgriProcessors’ meat: First, he says that “there is precedent for declaring something nonkosher on the basis of how employees are treated.” The precedent he cites is that Rabbi Yisroel Salanter, the highly respected 19th century founder of the “Mussar” movement, is, according to Rabbi Herzfeld, “famously believed to have refused to certify a matzo factory as kosher on the grounds that the workers were being treated unfairly.” Rabbi Yisroel Salanter is as gold-plated an authority as one can imagine. If he actually said that unfair treatment of workers renders a product non-kosher, one would have to give that ruling great weight.

Second, Rabbi Herzfeld cites allegations in an affidavit filed by the immigration authorities who raided the AgriProcessor plant in Iowa on May 12 to arrest illegal aliens employed there. He says that the affidavit alleges “that an employee was physically abused by a rabbi on the floor of the plant.” Rabbi Herzfeld says that “this calls into question the reliability and judgment of the rabbi in charge of making sure the food was kosher.” If, in fact, the “rabbi in charge of making sure the food was kosher” did assault an AgriProcessors employee, I would share Rabbi Herzfeld’s doubts regarding that rabbi’s “reliability and judgment” on issues relating to kashruth.

Third, Rabbi Herzfeld points to the arrest of “two workers who oversaw the poultry and beef division” for “helping illegal immigrants falsify documents.” He says that if these supervisors “were willing to break immigration laws, one could reasonably ask whether they would be likely to show the same lack of concern for Jewish dietary laws.” This is a reasonable question if, as one might assume from Rabbi Herzfeld’s description of the arrests, the arrested supervisors had any responsibility whatever for AgriProcessors’ compliance with “Jewish dietary laws.”
But it takes a little digging beneath the surface of Rabbi Herzfeld’s assertions to demonstrate how fallacious they are.

First, the Reb Yisroel Salanter story that he describes as “famous” does not appear in any biography of Rabbi Salanter that I have been able to find. Rabbi Hillel Goldberg’s marvelous history of the Mussar Movement titled “The Fire Within,” which has a comprehensive section on  Rabbi Salanter, tells only of his having advised his students that, when they were preparing matzos for Passover, they should not overwork or make excessive demands of the female workers who were kneading the dough and otherwise preparing for the matzo baking. That same account appears in a Hebrew volume titled “Bikkurei Shai,” written by the Chief Rabbi of Givatayim, Israel.

I e-mailed Rabbi Hillel Goldberg to ask him whether he had ever heard that Rabbi  Salanter had refused to certify the kashruth of a matzo factory because it was unfair to its workers. He replied that the only story on this subject that he knew of was the one that had appeared in his book. He added that it was not likely that Rabbi Salanter would ever have given a certification (“hashgacha”) on matzo because he “famously” avoided acting as a community rabbi. And I myself wonder whether it is not an anachronism for Rabbi Herzfeld to ascribe to the mid-19th century the community practices of today. At a time when all matzos were being hand-baked (and the rabbinic controversy over the kashruth of machine-made matzos was still several decades in the future), what “matzo factory” was seeking the “certification” of Rabbi Salanter?

Second, a closer look is warranted at Rabbi Herzfeld’s assertion regarding the case of the abusive “rabbi.” Nowhere in the government’s affidavit is any accusation reported against any rabbi whose job was “making sure the food was kosher.” The term “rabbi” is used interchangeably throughout the affidavit with the term “Hasidic Jew.” Obviously, any employee on the floor of the AgriProcessors plant who had a beard and wore a yarmulke was described by the government’s Guatemalan informant as a “rabbi” or “Hasidic Jew.” If one such Jewish employee – with no responsibility for kashruth – abused an employee, it does not “call into question the reliability and judgment of the rabbi in charge of making sure the food was kosher.”

Third is Rabbi Herzfeld’s reliance on the arrest of two supervisors. Would the arrested supervisors – who, one assumes from Rabbi Herzfeld’s question, are either certifying rabbis or, at least, Hasidic Jews responsible in some manner for kashruth –show the same disdain for Jewish dietary laws as for American immigration law? Rabbi Herzfeld does not tell us that the two arrested supervisors were named Juan Carlos Guerrero-Espinoza and Martin De La Rosa-Loera – supervisors at AgriProcessors whose concern or lack of concern for Jewish dietary laws is as irrelevant as one can imagine.

At a time of the year when we recall that vicious reports to authorities led to the destruction of the Temple, Rabbi Herzfeld might take a more careful look at the grounds for his public allegations.

(Nathan Lewin is a Washington attorney who has represented AgriProcessors  in the past and is currently participating as counsel in the defense of the company and its owner.)


  1. Not to mention we don’t paskin shailos based on a maaseh! We all know that in a situation as chomur as this, we could not paskin such dinei nefoshos on mere anecdotes.

    It’s a pity that Mr. Lewin, who does so much for the Klal, had to waste time chasing down paper tigers when there was no basis or credible sources to begin with. The only reason a person of his stature had to answer is because of the potential damage this rabbi inflicted on the Rubashkin’s as a result of his unfounded and misguided words.

    It sure is sad that those who think they wear a mantle of Torah abuse it so.

  2. of course, the way to prevent such problems in the future would be to ship the animals to a city with a large Jewish population, and minimize hiring goyim — also (what a real lawyer would never dare say), why should be respect America’s immigration law – Rashi in discussing Sodom says one of their crimes was that they refused to allow in hard working immigrants, and Rashi in the first pasauk of Berishis questions at all why any country should have the right to restrict immigration, so why should we be anxious to support a set of laws that are clearly racist, contrary to Torah, and were used in the mid-20th century to make sure that as few Jews as possible escaped the holocaust.

  3. I suspect that the whole thing was a carefully orchestrated plan believe or not from Tyson Foods. They are major contributors to the Democratic Party and would like nothing better to destroy their biggest competition, a kosher meat packing plant.

  4. This is quite a clear and concise response. People often like to exercise their opinions on matter like these, without truly knowing the facts and without any regard for the negative outcome to the recipients of their opinions (which is the basis for many lawsuits involving slander). Rabbi Hertzfeld, who obviously has a fairly vast listening audience, has to be careful about what he says. Articles such as these can cost him his career.

  5. Nathan Lewin is a stellar and very community responsible individual as can be found in the Jewish world. And he has a reputation for having one agenda, that of being an advocate for truth. I can’t say the same for most of the “rabbis”, Orthodox or not, that have been spredaing vitriolic statements against Agriprocessors.

  6. Mr. Lewin; an exceptionaly well written piece.

    Unsolicited advice………being that you’re a member in the “Ohev Sholom Synagogue” for 40 years, perhaps it’s time to resign in protest against them hiring such a “RABBI” (????) who’s blatantly a self hating jew and has the temerity to publicize it in the worset possible arena: “The NYT” where “ALL THE NEWS THAT’S UNFIT TO PRINT” is printed!

  7. Flatbush Bubby – Please explain how Rubashkin is competition for Tyson Foods. From what I know Tyson produces non kosher chickens, a business that in no way is competition for Rubashkin.

  8. akuperma – re: “why should be respect America’s immigration law?”

    This is a chilul Hashem, and no Rashi can get you around that. You cannot violate your country’s laws just because it is a nice thing to accept immigrants. This is silly, and it’s not only lawyers who would never say that, but any reasonable law-abiding citizen, Jew or Non-Jew, would agree that if you want to reach out to immigrants, you do so LEGALLY, not flout the immigration laws and do so ILLEGALLY.

    Incidentally, your comparison to Sidom is, I believe, false, because, for one thing, there were no MS13 or whatever other gangs and other issues that the rise in illegal immigration has brought to this country.

    Also, Sidom was cruel for the sake of being cruel; No leser an authority than Rav Moshe ZTZ”L has called America a Medina Shel Chessed, a benevolent gvt./country.

    As a separate point, I am surprised that YW printed a response against a Rav by a congregant. Is this Kavod HaTorah?

  9. I personally do not know what to believe. I know Rabbi Hertzfeld, one of his brothers and that brother’s wife. I think his intentions were good, let’s get to the bottom of this, but the methods and the forum where he decided to air the problem were not.

    Keep in mind that the first question to ask is if the food is kosher. Then you can get into the details of whether you personally hold with that Rav, Vaad, etc. After that, if you want to support something that has the frum equivalent of a “Good Housekeeping” stamp on kosher food – more power to you. Just understand the extra cost and difficulty of working with the many kashrut supervising authorities.

    I don’t know Mr. Lewin, but it sounds to me he is a great person that will assist us in getting to the bottom of this. Let’s see what he reports.

    Back to the money… this sounds to me like we should be looking at the union that is trying to organize the plant. Remember more memebers equals more dollars for the union, and more clout. Certain publications are very sympathetic to unions because unions take their members money and support political candidates and spend money in newspapers.

    If Agri broke immigration laws, then punish them for that. I don’t agree with illegal immigration because it causes a host of problems (that’s a separate issue). But Agri is not the first and will not be the last. I think a big treif plant was nailed for that last year. Fine them and move on.

    Violating immigration laws is not violating kashrut laws. If so, many of our so-called reputable members of the frum community are in violation too – check out your help in Monsey, BP, Williamsburg, etc. Check out the stores you support in those neighborhoods.

  10. akuperma… if you don’t like the rules too bad on u move to russia. it’s more your style and Flatbush Bubby… Agri is not even a blip on the Tysons radar screen. You really think Tysons cares about Agri? You are a typical flatbush naive person who thinks the whole business world revolves around the jews. Tysons is 1,000 times the size od Agri. Stop talkinglike a dumb yenta

  11. Thank you Mr. Lewin
    What has not been said is that in his other life, Rabbi Hertzfeld is co-head of Amcha (with Rabbi Avi Weiss), an organization of “activists” that have have released such unsubstatiated statements on a number of subjects in the past (see Rabbi Hetzfeld’s own website). In addition, he is one over activist Rabbi who in the past has not even asked his own YU rabbis for advice before releasing statements (ask anyone in the YU community)

  12. zamilenger,
    Before you open your mouth, know something about what you’re saying. Rabbi Herzfeld was ordained by Yeshiva University/RIETS. I lived there for 2 years and went to shul there. His love for jews knows no bounds, and if you’ve met him I don’t know how you can say he’s a self-hating Jew. He makes every yid (and even non-yids) at home in his shul and his Kiruv work is amazing. He has brought dozens of Jews closer to G-d and become kosher and shabbos observant.

    Kashrut does not work with the presumption of innocence until proven guilty like American law. Where serious accusations have been made, the kashrut becomes questionable. Also, the kashrut pertains more than to the food. In Baltimore, they have revoked certification where pizza shops encourage boys + girls talking; TVs are limited/prohibited; on fast days they limit the seating; on succos they require a succah. So don’t tell me that the only factor in kashrus certification is the food itself. I know this applies to many NY communities too.

  13. to #10 and #13

    If someone wants to come to America and do hard work for a fair wage, what’s wrong with that. Did Ha-Shem give them exclusive rights to this land? The rule was that anyone who could support themselves through honest work was welcome – at least when most Jews came (almost all before WWI, only a handful of the six million who wanted to come afterwards were allowed in, we all know what happened to them). It is no more our job to enforce the racist immigration laws today, than it would have been our job in 1941 to help the government ship Jewish refugees back to Europe (since they had no legal right to be anywhere else). Improperly supervising non-Jewish managers is a flaw (and that’s basically what the Rabushkins are accused of), but not jumping thru hoops to kick out immigrants is not something Agriprocessors should be expected to do.

  14. Akuperma,

    First of all dinah demalchusa dina and if they don’t follow the philosophy of the Torah, it is not our place to rebel against their laws. Secondly, even in Torah law people have a right to defend themselves and under the current lack of control, criminals are being let in and retained and not punished if they are illegals, diseases are proliferating that are controlled in America and terrorists are coming in to destroy the country. No one has to abide these abominations.

    Rabbi Herzfeld’s actions are at the minimum exceedingly careless and are actually a terrible act of mesira in kowtowing to one of Judaism’s worst enemies, the NY Times. He placed much of our kashrus under danger in order to look good in the eyes of the New York liberals. From the point of view of this activity alone, he is not fit to be a rabbi by any reasonable standard.

  15. Immigration policies have been abused, but logically, do need to be in place. No country can maintain an ‘open-door’ policy without creating a strain on its citizens, and even the threat of financial collapse. Immigrants compete for the same jobs as legal citizens, and many end up on the welfare roles, as uninsured in the health-care system, and in the courts and incarceration — all at the expense of the citizenry — with the home country receiving no financial contributions from the unregistered wages when these folks do work.

    Mexico and other countries have many resources. If the governments and populance see the public good and responsible policies, the citizens will want to stay, and even attract immigrants! Wouldn’t this be a better solution?

  16. Rabbi Herzfeld, a close personal friend, as pointed out by Mr. Lewin, has dynamically changed the face of Jewish Washington NW. He often discusses with me various social moral issues (in this specific case, he did not consult me) and struggles to turn them into issues of Halacha. He does so out of a sincere belief that the two are inseparable, and in theory, there is merit in his position. Just as Mr. Lewin has done, I have attempted to impress upon Rabbi Herzfeld, that he must get his facts perfectly correct, otherwise his well-intentioned efforts devolve in Loshon Hora. Conversely, we in the Bene Torah camp, also have our foibles. We tend to disregard, brush aside and even cover up problems in our community that are embarrassing. I am not saying it is proper to wash our dirty laundry in public, but, 1. we shouldn’t bury our heads in the sand at real problems, 2. even if we are making efforts at resolving those problems, and somehow they become public knowledge, it is not always advisable to make excuses. Rabbi Herzfeld may be wrong in this case because he relied too heavily on news reports, which also (and often) have their facts wrong, but we must bear in mind that his Kavana is to be Mekarev liberal Jews, and with much success, who are completely turned off by the Bene Torah camp.

  17. Yaakov doe, Rubashkin sells kosher meat at a reasonable price at popular supermarkets. They market many of the same things such as chicken nuggets, franks, and of course chickens. If Tyson Foods could eliminate them, then the marginally frum or even the muslim would cave in and out of desperation buy non-kosher items.

  18. Flatbush Bubby,

    I see what you are saying. But I think as Rubashkin meats/ poultry become more expensive the marginally frum or muslims are more likely to pruchase Hebrew National products (which is manufactured by ConAgra).

    Also it’s not clear to me what Tyson’s contributions to the Democratic party have to do with the Rubashkin raid. Do you think that the immigration department makes decisions based on contributions by political parties? If they did, Microsoft would donate money & get most of their employees through H1B visas instead of paying American natives.

  19. That is exactly what Microsoft does! And yes, ICE does determine who they raid according to politics! They will not raid a halal plant. And lamdin#1, go get a life and go see your local psychologist. You are a sick fool.

  20. Hakatan and tzoorba, stop making up a new religion. “Dina demalchusa dina” does NOT mean that the entire USA Code is incorporated by reference into halacha. DdMD is a chidush, and ein lecho bo yoser michidusho. Go learn the sugya in the gemara and rishonim and see if you can come out with a clear picture of what it means, where it applies, and what Shmuel’s reasons were for saying it, and try to justify your claim that it obligates Agri to refuse employment to people just because they entered the USA without permission.

    Sedom’s laws were not motivated by pointless cruelty, but by a desire to deter a flood of immigrants that they feared would come to take advantage of their natural resoures. And yes, the immigration laws of the USA and most western countries today are certainly comparable to those of Sedom. Your quote from R Moshe Feinstein is irrelevant.

  21. Nathan Lewin’s attack on Rabbi Shmuel Herzfeld’s Op-Ed piece(NYTimes,8/6/08), clearly demonstrated the formidable legal brain-power and creativity Mr. Lewin has exhibited his entire distinguished legal career. However, Mr. Lewin has a more challenging assignment ahead than just simply nit-picking Rabbi Herzfeld’s references to Rabbi Yisroel Salanter, the founder of the ”Mussar Movement”.

    Whether Mr. Lewin’s defense of Agriprocessors, the Rubashkins, and the extended family prevails at both the trial and appellate levels is hard to predict, but this company and this family seem to represent the closest thing to an annuity for any law firm the size of Mr. Lewin’s. As a another writer has already said ”Agriprocessors is a company that has gored four times”.

    Already the names Agriprocessors and Rubashkin seem to have entered the common vernacular of Jews and non-Jews. As Mr. Lewin knows full well, Agriprocessors has a history of dirty tricks and they seem to keep adding new chapters to their legal history on a regular basis. The latest one, the indictment of the Rubashkins and their Agriprocessors managers by the Iowa Attorney General, and just before that, came the admission from their PR agency, ”5W-Public Relation’s, of planting false blogs to discredit Rabbi Morris J. Allen, a Conservative Rabbi who, many feel, is properly introducing, a ”Mussar” element into the Agriprocessor-Rubashkin discussion.

    Since Mr. Lewin has now told us that the ”Mussar” question should not be used to test the ”kosher status” of the Agriprocessor product or the family behind it, many in my synagogue would be interested in Mr. Lewin’s ideas on how Rabbi Salanter would view the Agriprocessor/ Rubashkin situation and whether Mr. Lewin is planning to schedule a ”Agriprocessors/Mussar” discussion for his ”Mishpat on Mondays Series and invite Rabbi Herzfeld to present.

    Many thanks-
    Zach Dicker–
    Great Neck, NY