Bob Barr

First Disbar, But Then Keep Digging
The Atlanta Journal-Constitution
June 20, 2007

Lawyers have been taking a beating for a long time. Even Saint Luke, in writing his otherwise glorious Epistle, singled out lawyers as a profession to watch out for, noting in Chapter 11, Verse 46, "Woe unto you also, ye lawyers! For ye lade men with burdens grievous to be borne, and ye yourselves touch not the burdens with one of your fingers."

Most students of William Shakespeare are familiar with the Bard's rather draconian solution to the lawyer problem, when he recommended in Henry VI, "The first thing we do, let's kill all the lawyers." There's no getting around the fact that lawyers have taken their hits, which seem to keep on coming.

Of course now we have the winner of the lawyer's trifecta, the man who gives not only lawyers, but prosecutors and elected officials, a bad name: Michael Nifong.

Nifong is not a hard man to dislike. The way he conducted the investigation and prosecution of three innocent Duke University students from his perch as district attorney for Durham County, N.C., was egregious and blatant. A more worthy recipient of a disbarment order could not be found.

Where some prosecutors might take liberties with a particular nuance in the law, Nifong blasted a gaping hole right through it. While certain district attorneys might be forgiven for stretching the evidence in an effort to secure a conviction in a close case, Nifong simply ignored the evidence. While other lawyers charged with prosecuting crime in their jurisdiction might be less than completely forthcoming in sharing potentially exculpatory evidence with counsel for the accused, Nifong went out of his way to withhold exonerating facts from the defense lawyers.

While the clearly incompetent Nifong is no longer able to ply his former trade, one hopes his resignation and disbarment will not end the quest for justice for the three Duke University students so unjustly charged with raping a stripper in March 2006.

Duke announced this week that it had reached an undisclosed financial settlement with the students.

Additionally, questions need to be posed to—and answered by—the Duke University administration, which was far too eager to throw these three students, their lacrosse team coach and the reputation of the entire program under the bus before anything remotely approaching credible evidence of their guilt emerged. The North Carolina attorney general, who eventually did the right thing in removing Nifong from the case, should make clear to the people of his state why it took so long to take such obviously necessary corrective action.

And finally, what of the stripper herself? Ought not some tough questions, and possibly criminal charges for falsely accusing the students, be directed her way? The people of North Carolina deserve more and better answers on all these questions than simply disbarring Nifong has given them.

Elsewhere, another lawyer has bitten the dust. President Bill Clinton's former national security adviser, Sandy Berger, last month surrendered his District of Columbia bar license. Berger's saga began three years ago when, in preparation for testifying before the 9-11 Commission, he purloined a number of classified national security documents—hiding them in his socks and underwear—so he could later destroy them.

Although he was essentially caught red-handed, the Bush administration Justice Department cut Berger a sweetheart deal under which he was allowed to plead to a misdemeanor, be fined and serve no jail time. Last month, rather than fight to retain his bar license, Berger agreed to be disbarred. While this move averts a potentially embarrassing public hearing detailing the tawdry details of a former national security adviser stuffing secret documents into his boxers, we should not allow the matter to die so quietly.

A fair and relevant question that Congress, the American people and the administration ought to ask—one that has never been satisfactorily explored—is why these documents were so important that a former high government official would risk jail to destroy them and then give up his lucrative law license without a fight to avoid any public discussion of them?

Unfortunately, it is unlikely the Bush administration will want to revisit the Berger matter. After all, it was this administration that allowed him off the prosecution hook with a tap on the wrist. It is no more likely that the Congress, now under Democratic control, will want to reopen a can of worms potentially embarrassing to a former and perhaps future president, both named Clinton.

So, with the powers-that-be in both Washington, D.C., and North Carolina hoping the disbarments of two infamous former lawyers will deflect calls for further embarrassing questions, the only force capable of obtaining answers to the underlying questions of why these cases developed the way they did in the first place, will be the American people demanding answers. Think we can convince enough of them to tear themselves away from "American Idol" long enough to help save our legal system?

Bob Barr occupies the 21st Century Liberties Chair for Freedom and Privacy at the American Conservative Union Foundation.