by John Denvir, USF Law School (December 1998) 

   When I was considering applying to law school in the 1960's, the most popular "lawyer" show on television was "The Defenders" starring E.G.Marshall and Robert Reed as a father-son law firm specializing in defending righteous causes. (See David Papke’s excellent essay on "The Defenders" in Jarvis and Joseph’s Prime Time Law.) Now the most popular "lawyer show" is "Ally McBeal," a weekly hour-long "lawyer joke." Come to think of it, there was no such thing as a "lawyer joke" in the 60's. Times have changed, as they say.

   I think the negative image of lawyers which we see in all the media can be traced to a basic misunderstanding in the public mind about the role lawyers play in American society. Unfortunately, it is a misunderstanding that too many lawyers share.

   Every culture needs what anthropologists call "the trickster," the person who is able to challenge the legitimacy of conventional wisdom and traditional pieties. He was called Hermes in Greece, Mercury in Rome; Native Americans called this mythic personage "coyote" and he appears as "Brer Rabbit" in African-American folk tales. The trickster, unlike a magician, cannot change physical reality, but he can change our perceptions of it. Often that’s more important.

   I think lawyers play the "trickster" role in American culture. Let me give two examples. One illustration comes from my own field of constitutional law where there is currently a debate going on over what constitutes an "impeachable" offense. More specifically, does perjury or lying under oath by the president constitute an impeachable offense?

   Defenders of President Clinton have had a hard time with this issue. First, the text doesn’t help. It speaks of "reason, bribery, and other high crimes and misdemeanors." Perjury bears a strong resemblance to treason and bribery, all three being crimes against the public order. Even worse for Clinton is the historical fact that federal judges have actually been successfully impeached for the crime of lying to a grand jury. If lying to a grand jury is an impeachable offense for a judge, so too it must be for a president. That seems as clear as two plus two equals four.

   It’s here where "trickster" Washington lawyer Lloyd Cutler enters the fray. (See his op-ed in the November 9th New York Times). Cutler points out three distinctions between impeaching a president and impeaching a federal judge. First, since judges serve for life, it’s either impeachment or allowing the evil-doer life tenure. A President only serves four years. Secondly, a judge’s main work is overseeing trials in which witnesses testify under oath. A conviction of perjury undermines his or her ability to perform this function. But a President has a different job description, one in which deception sometimes may be necessary. Finally, since a judge’s duties are fairly noncontroversial, we don’t worry about impeachment being used to settle what is really a policy dispute. We very much worry about political enemies misusing impeachment to punish a president whose policies they abhor.

   Suddenly, we start to see that two plus two does not always equal four. Maybe perjury should be a " high crime" for a judge but not for a president.

   My second example is better known. It involves the prosecution of a famous ex-athlete for the murder of his wife. At first, the case seemed open and shut. Not only was there a history of marital violence and clear evidence of the defendant’s blood at the murder scene, but also the whole nation had witnessed a bizarre motor cavalcade while the defendant considered whether or not to kill himself, hardly the actions of an innocent man.

  The prosecution had every reason for confidence until they ran into a trickster named Johnny Cochran. They discovered too late that the case was not about wife-beating or the infallibility of DNA testing, but about racist cops and poorly trained lab assistants. The result was a quick "Not Guilty."

   In both examples, we see a lawyer using his professional skills to change perceptions. That’s the trickster’s trade.

   Now let’s admit at the outset that the trickster is not a moral person in any conventional sense of the word; his loyalty is to his client, not the community. I have little doubt that Cutler would sing a different song were his client a federal judge. So too, whether or not O.J. Simpson actually committed the murder was probably of limited interest to Cochran. He had a case to try.

   But let’s also be clear that the community gains from the trickster’s labors. The trickster expands reality, allowing us to see imaginative potential which conventional wisdom ignores. We can still impeach Clinton or convict Simpson; that’s our decision, not the lawyer’s. The lawyer just allows us to envision some alternative endings. And even if we rule against their client, Cutler enriches our understanding of the Constitution and Cochran forces us to confront problems too long ignored.

   But while the trickster may not always be moral, he does have an ethic. He must live a paradox, stretching language without destroying it. Language and rational argument are the tools of his trade. To make a mockery of them is a self-destructive act. Here I think lawyer Bill Clinton serves as a powerful negative example.

   It’s pretty well assumed now that Clinton lied under oath when he was asked about his relationship with Monica Lewinsky. People do lie; people do lie under oath. But Clinton has gone even further, claiming that his lies were "legally accurate." Now the trickster starts to chew on his own tale.

   How will legal discourse continue under the Clinton concept of "legal accuracy"? Let me give you an example from history. You will remember there was another lawyer trickster named Nixon who once made a clear statement: "I am not a crook!" Of course, that statement also turned out to be a lie, but at least it had the virtue of being able to be proved true or false. Under the Clinton definition of "legally accurate," we will have an infinite regress of questions. "Mr. President, when you say ‘I’ are you referring to yourself or the person you would like to be?" "Could you be more precise in your definition of "crook"? Should we understand that to mean only that you have never actually been convicted of a felony?" And President Clinton has already instructed us on all the possible meanings that can be silently ascribed to a simple word like "am."

   So for me, Clinton’s crime is much worse than perjury: he has tried to kill the possibility of human communication, the very medium in which lawyers work. It’s not an impeachable offense, but neither is it lawyering in any acceptable sense of the word.