A couple of days ago Neil Buchanan posted a few ideas about how to sell the value of defense lawyers to the public. I don't have much to add directly on that thread, but three current cases do, it seems to me, show one great virtue of lawyers in a system of limited government: Because we lawyers consider ourselves guardians of the principle that no one is above the law, lawyers serve as a vital check against the accumulation of tyrannical power. That's conventional wisdom for defense lawyers putting the prosecution to its proof, but it's even more clearly illustrated in cases in which lawyers act to prosecute high-ranking government officials. Thus, Israeli Attorney General Menachem Mazuz sees it as his duty to prosecute the country's President, Moshe Katsav, for rape and other crimes. Likewise, special prosecutor Pat Fitzgerald is aggressively building his case against Scooter Libby, and there's little doubt that he would have gone after Rove or even Cheney if that's where the evidence led. In both cases, the prosecuting attorney has been accused of having a political ax to grind but the accusations ring hollow: Fitzgerald and Mazuz both have reputations for being tough prosecutors who follow the evidence.
The problem, of course, is that prosecutors have been known to go overboard in their pursuit of the powerful, whether it's Ken Starr's Inspector Javert-like obsession with Bill Clinton's completely inappropriate but ultimately private sexual misbehavior or Michael Nifong's single-minded quest to bring down members of the Duke lacrosse team, even if it meant withholding exculpatory evidence. How do we ensure that the likes of Fitzgerald and Mazuz are available to challenge the powerful when they need challenging without licensing Starr and Nifong?
The Madisonian answer is to counter aggressive prosecutors with equally aggressive defense attorneys. To be sure, it's hardly a perfect solution. The mere need to mount a defense can be devastating, and in cases against high-ranking public officials, the distraction of an investigation, even without a trial, can adversely affect public policy. But if supplemented by robust enforcement of professional norms -- e.g., Nifong faces the prospect of serious disciplinary action by the North Carolina bar -- setting lawyers against lawyers may be the best we can do to guard against the guardians.