In Re: Independent v. Francis T. Mandanici ( 1998 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 97-3939
___________
In re: Independent Counsel *
Kenneth W. Starr, *
*
Appellee, *
*
United States Department *
of Justice, *
* Appeal from the United States
Appellee, * District Court for the
* Eastern District of Arkansas
v. *
*
Francis T. Mandanici, *
*
Appellant. *
___________
Submitted: March 5, 1998
Filed: June 23, 1998
___________
Before McMILLIAN, BEAM and LOKEN, Circuit Judges.
___________
McMILLIAN, Circuit Judge.
Francis T. Mandanici, an attorney who resides in Connecticut, appeals pro se
from final orders entered in the United States District Court for the Eastern District of
Arkansas, dismissing his “ethics grievance” brought under the color of Rule V(A) of
the American Bar Association’s Model Federal Rules of Disciplinary Enforcement,1 In
re Starr, 986 F. Supp. 1159 (E.D. Ark. 1997) (Starr II), and denying his motions for
recusal. Id., 986 F. Supp. 1157 (E.D. Ark. 1997) (Wright, J.); id., 986 F. Supp. 1159
(E.D. Ark. 1997) (order) (Reasoner, C.J.). For reversal, Mandanici argues that the
district court erred or, in the alternative, abused its discretion in refusing to refer his
grievance for investigation and the prosecution of a formal disciplinary proceeding
under Rule V(A). Mandanici also argues that Chief Judge Reasoner and Judge Wright
abused their discretion in refusing to recuse themselves from the adjudication of
Mandanici’s grievance. For the reasons discussed below, we dismiss this appeal for
lack of jurisdiction.
Background2
This case originated from an “ethics grievance” addressed to the District Judges
of the United States District Court for the Eastern District of Arkansas in the form of
1
The United States District Court for the Eastern District of Arkansas has
adopted the American Bar Association’s Model Federal Rules of Disciplinary
Enforcement which provide that the district court must apply the code of professional
responsibility adopted by the highest court of the state in which the district court sits,
which, in this case, is Arkansas. See Local Rules for the Eastern & Western Districts
of Arkansas at App.-1, Rule VI(B). The Arkansas Supreme Court has adopted the
American Bar Association’s Model Rules of Professional Conduct as the State of
Arkansas’s code of professional responsibility. See In re Arkansas Bar Ass’n, 702
S.W.2d 326, 393 (Ark. 1985).
2
For a more detailed discussion of the factual and procedural background of this
case, see Starr II, 986 F. Supp. 1159, 1164–66 (E.D. Ark. 1997) (Eisele, J., dissenting);
id, 986 F. Supp. 1144, 1145–47 (E.D. Ark. 1997) (Starr I).
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a letter dated September 11, 1996 (hereinafter “Mandanici I”). In that letter,
Mandanici complained to the district court that Independent Counsel Kenneth W. Starr
violated (and, presumably, continues to violate) ethical rules concerning conflicts of
interest during the course of what is widely known as the Whitewater investigation.
Specifically, Mandanici alleged that Starr’s substantial ties with the Republican Party
create a conflict of interest because the Republican Party has a stake in the outcome of
the Whitewater investigation. Mandanici also alleged that Starr has or at one time had
a conflict of interest arising out of his investigation of the now-defunct Resolution Trust
Corporation (RTC) in connection with Whitewater and a lawsuit that the RTC filed
against Starr’s law firm.3 Mandanici alleged that the lawsuit was ultimately settled in
secret for $300,000, saving Starr’s firm an estimated $700,000.
In light of these allegations, Mandanici requested that the district court refer both
matters for investigation and prosecution, pursuant to Rule V(A) of the Model Rules,4
and sought disciplinary enforcement against Starr in the form of disbarment,
suspension, reprimand, or other sanction. The district judges initially voted to refer the
3
Starr is a partner in the Washington, D.C., office of the Chicago-based law firm
Kirkland & Ellis.
4
Rule V(A) provides:
When misconduct or allegations of misconduct, which if substantiated,
would warrant discipline on the part of an attorney admitted to practice
before this Court shall come to the attention of a Judge of this Court,
whether by complaint or otherwise, and the applicable procedure is not
otherwise mandated by these Rules, the Judge shall refer the matter to
counsel for investigation and the prosecution of a formal disciplinary
proceeding or the formation of such other recommendation as may be
appropriate.
Mod. Fed. R. Disc. Enf. V(A).
-3-
matter to the Attorney General for review, pursuant to 28 U.S.C. § 596,5 which confers
upon the Attorney General the power to remove an independent counsel. See id. The
United States Department of Justice (DOJ) responded by letter dated February 7, 1997,
which stated, in pertinent part, that the DOJ would take no action against Starr because
the “materials that have been presented . . . do not contain allegations of any conduct
by [] Starr that can be viewed as so ‘extreme’ as to call for the Attorney General’s use
of the extraordinary power of removal.” Joint Appendix (J.A.) at 247 (Letter from
Michael E. Shaheen, Jr.6 to Chief Judge Reasoner of Feb. 7, 1997). The letter further
stated:
With respect to the allegation of a conflict of interest regarding the RTC,
it is true that the materials presented to [the DOJ] on their face indicate
that [] Starr at one time may have suffered from at least a technical
conflict of interest. However, those materials also make clear that no
such conflict exists at this point. Consequently, there is no information
to support the proposition that such a conflict, if in fact it ever actually
existed, substantially impairs [] Starr’s current ability to carry out the
duties of his office.
Id.
5
Section 596 provides in relevant part:
An independent counsel . . . may be removed from office, other than by
impeachment and conviction, only by the personal action of the Attorney
General and only for good cause, physical or mental disability (if not
prohibited by law protecting persons from discrimination on the basis of
such a disability), . . . or any other condition that substantially impairs the
performance of such independent counsel’s duties.
28 U.S.C.A. § 596(a) (West Supp. 1997) (footnote omitted).
6
Counsel with the Office of Professional Responsibility of the DOJ.
-4-
After receiving a copy of the DOJ’s response, Mandanici reasserted his grievance
to the district court in a letter dated March 11, 1997 (hereinafter “Mandanici II”). This
time Mandanici focused on the RTC allegations and the added allegation that Starr’s
then-recent acceptance of a deanship at the School of Public Policy (SPP) at Pepperdine
University created a conflict of interest. According to Mandanici, the latter conflict
derived from the SPP’s substantial endowment from Richard Mellon Scaife, whose
criticisms of President Clinton have been widely publicized. Mandanici alleged that
Scaife has spent millions of dollars to promote the Whitewater investigation and to press
a media campaign to discredit the President.
On August 1, 1997, the district court filed the first of its published opinions in this
matter.7 Starr I, 986 F. Supp. 1144 (E.D. Ark. 1997). The opinion set forth the bases
for the recusal of Judges Roy, Woods, Wilson, and Moody.8 The opinion also
contained a lengthy, critical analysis of Mandanici’s allegations, authored by Judge
Eisele, which different majorities of the court joined in part.9 Id. at 1145–55. Judge
Eisele’s analysis was originally printed in the district court’s earlier slip opinion, see In
re Starr, No. LR-M-97-91 (E.D. Ark. May 30, 1997) (slip op.), and addressed the
question of standing, the rules of the court, the court’s authority, and the substantive
allegations in Mandanici II. His discussion of the allegations was limited, however, to
7
On May 30, 1997, the district court filed a slip opinion ordering briefing on the
question of Mandanici’s standing. In re Starr, No. LR-M-97-91 (E.D. Ark. May 30,
1997) (slip op.).
8
Judge Moody recused himself at the outset of the Mandanici II litigation. See
Starr I, 986 F. Supp. at 1155. His recusal was confirmed by the district court’s August
1, 1997 opinion. Id. at 1144, 1155.
9
See infra notes 11–12. Chief Judge Reasoner and Judges Howard and Wright
dissented from Judge Eisele’s analysis and conclusions. Id. at 1155.
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the Pepperdine-Scaife issue, and did not address the RTC allegations.10
10
The opinion states: “In light of the Justice Department’s response regarding the
older RTC allegations, the Court no longer finds any reason to address the RTC
allegations.” Id. at 1147. The author of this opinion, speaking for himself only,
disagrees with this conclusion.
The DOJ analyzed the RTC allegations pursuant to 28 U.S.C. § 596, which
imposes the strict standard of “good cause,” and determined that there was no basis for
removal. Indeed, Congress has made clear that the removal power should not be
applied to penalize minor or technical violations of ethical or other duties. See J.A. at
247 (Letter from Michael E. Shaheen, Jr. to Chief Judge Reasoner dated Feb. 7, 1997
(citing S. Rep. No. 496, 97th Cong., 2d Sess. 17 (July 14, 1982), reprinted in 1982
U.S.C.C.A.N. 3537, 3553 (“[W]e stress that the Attorney General should use his [or
her] removal power in only extreme, necessary cases . . . .”)). Further, the DOJ opined
that “apart from the context of removal,” the DOJ could not properly “address any
allegations that [] Starr has a conflict of interest. An independent counsel is subject to
discipline by the Department of Justice only through the statutory removal mechanism.”
J.A. at 252 (Letter from Michael E. Shaheen, Jr. to Chief Judge Reasoner dated May
21, 1997 (citing 28 U.S.C. § 594(i) (each independent counsel is separate and
independent of the DOJ for purposes of enforcing criminal conflict of interest laws))).
The DOJ expressly refrained from suggesting whether Mandanici’s allegations
warranted further review by the district court and informed the court that it “did not
gather any additional facts bearing on the issues before [the district] court.” Id. at 253.
By contrast, in reviewing allegations of ethical violations of the members of its
bar, the district court may consider lesser sanctions that are not subject to the same
exacting standards required of the Attorney General for removal under § 596. Thus,
while the DOJ’s § 596 analysis may guide the district court in conducting its own,
independent assessment of Mandanici’s allegations, that analysis is of limited
applicability and certainly may not supplant that required of the district court. In light
of the foregoing, the author of this opinion believes that the district court improperly
limited its analysis to the Pepperdine-Scaife issue.
A separate question arises, however, as to whether the district court’s referral
of the RTC allegations to the Attorney General constitutes effective compliance with
Rule V(A) as to the RTC allegations. The Office of Independent Counsel (OIC)
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As a preliminary matter, the district court11 determined that standing was not a
“real issue.” Id. at 1148. The district court treated Mandanici’s grievance as that of a
“witness or other third party, even if anonymous, who informed the court of . . . an
alleged conflict in counsel’s representation.” Id. Further, the district court emphasized
that Mandanici is not a party to any action pending before the court nor is he a “person
with the ability to submit a motion upon which the Court is duty-bound to act.” Id.
In its discussion of the merits of the case, the district court rejected a strict,
textualist reading of Rule V(A), which provides in pertinent part:
When misconduct or allegations of misconduct, which if substantiated,
would warrant discipline on the part of an attorney admitted to practice
before this Court shall come to the attention of a Judge of this Court
. . . the Judge shall refer the matter to counsel for investigation and the
prosecution of a formal disciplinary proceeding or the formation of such
other recommendation as may be appropriate.
Mod. Fed. R. Disc. Enf. V(A) (emphasis added). The district court held that, despite
its use of the word “shall,” Rule V(A)’s language is precatory in nature and does not
give rise to an obligation on the part of the district court to refer such complaints for
candidly submits that the main purpose of the district court’s referral was to determine
whether the threshold requirements of Rules V(A) were met; that is, the district court
sought to determine whether the alleged conduct, if substantiated, could be subject to
disciplinary action. However, as this court does not ultimately reach the merits of
Mandanici’s allegations, it will refrain from deciding this issue.
11
Judges Eisele, Roy, Woods, and Wilson. Chief Judge Reasoner and Judges
Howard and Wright opined that Mandanici lacked standing to submit his ethics
grievance to the court because “Mandanici is an interloper out to manipulate the Court
for his political purposes and . . . his efforts constitute a political vendetta.” Starr I, 986
F. Supp. at 1148. In addition, they point out that Mandanici has no personal interest
in the matters that Starr is investigating as Independent Counsel. Id.
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investigation and prosecution.12 Id. at 1149. In light of this determination and their
12
The district court reasoned that it should “be able to adapt [local rules] to
unforeseen circumstances,” and that inflexibility in reading Rule V(A) could lead to
“unreasonable, unfair, and unwise results when viewed in light of the overall purposes”
of the disciplinary rules. Starr I, 986 F. Supp. at 1149. The district court further stated
that reading a mandatory referral into Rule V(A) would be inconsistent with the district
court’s practice since it adopted the Model Rules over 20 years ago. See id.
In dissent, Judges Roy, Wilson, and Woods asserted that Rule V(A) creates a
mandatory duty to refer Mandanici’s allegations for investigation. See id. The author
of this opinion, speaking for himself only, agrees with the interpretation of the
dissenting judges.
“[T]he words of a rule are intended to communicate a meaning to those to whom
they are addressed, rather than to carry some gloss, hidden in the minds of the judges
who drafted the rule.” 12 Charles A. Wright et al., Federal Practice and Procedure §
3153 (2d ed. 1997). The word “shall” has consistently been held to create an
imperative or command. See, e.g., Lexecon Inc. v. Milberg Weiss Bershad Hynes &
Lerach, — U.S. —, —, 118 S. Ct. 956, 962 (1998) (Lexecon) (observing that, as a
statutory term, “‘shall’ . . . normally creates an obligation impervious to judicial
discretion”) (citing Anderson v. Yungkau, 329 U.S. 482, 485 (1947)); Stanfield v.
Swenson, 381 F.2d 755, 757 (8th Cir. 1967) (“When used in the statutes the word
‘shall’ is generally regarded as an imperative or mandatory and therefore one which
must be given a compulsory meaning.”). Where, as here, the meaning of the rule is
clear from its language, no further inquiry is required. Estate of Cowart v. Nicklos
Drilling Co., 505 U.S. 469, 476 (1992) (“[C]ourts must give effect to the clear meaning
of statutes as written.”); United States v. Morales, 108 F.3d 1031, 1036 (9th Cir. 1997)
(“If the meaning of the rule is perfectly plain from its language, that ends the
inquiry.”)). Rule V(A) thus plainly requires the district court to refer allegations of
misconduct to counsel for investigation and prosecution.
This conclusion is not inconsistent with the rule of this and other courts that
district courts should be accorded great deference in interpreting their own rules.
Indeed, other appellate courts have noted that a district court’s inherent power to
discipline attorneys who practice before it does not absolve the court from its obligation
to follow the rules it created to implement its exercise of such power. Matter of
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respective friendships with the President and Mrs. Clinton, Judges Roy, Woods, and
Wilson recused themselves.13 Id. at 1156.
In a subsequent opinion granting a motion by the OIC to dismiss Mandanici’s
complaints, Judge Wright, writing for the majority,14 determined that Mandanici’s
allegations did not warrant referral for investigation and prosecution. Starr II, 986 F.
Supp. at 1168. In reaching this conclusion, the district court specifically relied on the
following factors: (1) Mandanici’s complaint represented “a personal crusade to
discredit the Independent Counsel”; (2) there was no specific evidence of misconduct
by Starr in the course of the proceedings before the district court; and (3) after
reviewing Mandanici’s allegations, the DOJ determined that there was no basis for
Thalheim, 853 F.2d 383, 388 (5th Cir. 1988); Matter of Abrams, 521 F.2d 1094, 1104
(3d Cir. 1975); cf. Congregation of the Passion v. Touche, Ross & Co., 854 F.2d 219,
223 (7th Cir. 1988) (noting that, despite considerable discretion given to district courts
in interpreting their local rules, courts of appeal will reverse a district court’s
construction of its own rule whenever the district court has clearly misconstrued the
rule); 12 Federal Practice and Procedure § 3153 (same). Moreover, the Supreme Court
has held that the plain command of a statute should be given effect “even if doing that
will reverse the longstanding practice under the statute and the rule.” Lexecon, — U.S.
at —, 118 S. Ct. at 962 (citation omitted); see also Brown v. Gardner, 513 U.S. 115,
122 (1994) (“Age is no antidote to clear inconsistency with a statute.”).
13
Judge Wilson notably wrote of their recusal:
Those of us who are recusing do not do so lightly. We do this realizing
that this probably has the effect of killing the Mandanici II complaint
without it having been considered on the merits. In fact, it is hard to
escape the conclusion that our recusal may well confer de facto immunity
on the Independent Counsel, with respect to ethical violation complaints.
Starr I, 986 F. Supp. at 1157.
14
Chief Judge Reasoner and Judges Howard and Wright.
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action by that office.15 Id. at 1161.
15
The author of this opinion, speaking for himself only, takes issue with the
weight that the district court accorded to both the DOJ’s letter and Mandanici’s alleged
personal or political animus in filing the underlying complaints, the district court’s
assumption that specific evidence of misconduct is required under Rule V(A), and the
district court’s failure to analyze the substance of Mandanici’s allegations. Judge
Eisele addressed these issues in an insightful opinion concurring in part and dissenting
in part from the district court’s majority opinion. The author of this opinion agrees with
Judge Eisele’s analysis.
Judge Eisele argued that Mandanici’s allegations, if true, demonstrate that Starr
suffered under at least an appearance of conflict with respect to the Pepperdine-Scaife
issue, thereby triggering the district court’s duty to refer the matter for investigation
under Rule V(A). See Starr II, 986 F. Supp. at 1166, 1168 (Eisele, J., dissenting) (“It
is my opinion that the Court has not only the legal authority but also the institutional
duty to inquire into the Pepperdine-Scaife issue.”). Specifically, Judge Eisele noted
that, in refusing to address the substance of Mandanici’s allegations, the majority
incorrectly assumed that specific evidence of misconduct was required to establish an
appearance of conflict. Id. at 1166–67. The majority wrote:
[T]his court is unaware that [] Starr has ever acted in an improper or
unethical manner in the matters over which this Court has presided, and
in the absence of specific evidence of misconduct on the part of the
Independent Counsel in proceedings before this Court, and considering
the motivations behind [] Mandanici’s allegations, this Court declines the
opportunity to provide [] Mandanici a forum for the pursuit of his
“vendetta.”
Id. at 1162. However, it is axiomatic that specific evidence of actual misconduct is not
required to demonstrate that there is an appearance thereof.
Judge Eisele also challenged the majority’s emphasis on Mandanici’s “vendetta”
against Starr and asserts that these concerns should have been put aside in favor of an
objective analysis of the merits of Mandanici’s allegations. See id. at 1167. Finally,
Judge Eisele criticized the majority’s reliance upon the DOJ’s investigation as strong
support for its conclusion that Mandanici’s allegations do not warrant referral. See id.
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As the majority acknowledged, the DOJ expressly stated that it takes “no position on
whether the Court should exercise its discretionary authority to review [the Mandanici
allegations] or to take any action if it does so,” J.A. at 198 (Response by the Attorney
General to Motion to Dismiss at 16), and that its decision not to investigate the
Pepperdine-Scaife allegation was based on “the high threshold for triggering an
investigation where the issue is the use of the Attorney General’s removal power under
28 U.S.C. § 596(a)(1).” Id. at 261 (Letter from Michael Shaheen, Jr. to Judge Eisele
of Aug. 8, 1997). Judge Eisele contended that, because the DOJ employed a “very
high threshold” for purposes of removal, the DOJ’s analysis is of limited applicability
to the majority’s determination whether to impose lesser sanctions, particularly where
the majority did not address the allegations (and supporting evidence) regarding Starr’s
apparent conflict of interest. Starr II, 986 F. Supp. at 1167.
Contrary to Judge Loken’s concurrence, neither Judge Eisele nor the author
asserts that the Pepperdine-Scaife issue amounts to “an apparent political conflict of
interest.” Infra, at 22, (concurring in judgment) (emphasis in original). Indeed, Judge
Eisele clearly stated: “The alleged Pepperdine-Scaife conflict that I have identified has
nothing whatsoever to do with Mr. Starr’s political views. Rather, it puts Mr. Starr’s
personal, financial, and career interests in possible conflict with his duty as independent
counsel to exercise his prosecutorial power and discretion fairly and even-handedly.”
Starr II, 986 F. Supp. at 1167 (Eisele, J., dissenting). Likewise, the author opines that,
if true, the Pepperdine-Scaife allegations create the appearance of a personal conflict
of interest as defined in 28 C.F.R. § 45.2(b)(2) (1998) (defining “personal
relationship” as “a close and substantial connection of the type normally viewed as
likely to induce partiality”). Moreover, there is nothing in the express language of the
Independent Counsel Act, 28 U.S.C. § 594, or 28 U.S.C. § 528 (providing for the
disqualification of officers and employees of the DOJ in the event of an actual or
apparent personal, financial, or political conflict of interest), that would prohibit the
district court from enforcing the ethical standards contained in its local rules against
federal prosecutors, including independent counsel, qua members of the bar. See also
J.A. at 189 (Response by the Attorney General to Motion to Dismiss at 7) (“[W]e are
not aware of any evidence that Congress meant in the Ethics in Government Act, or any
other statute, to interfere with [the district court’s] traditional power . . . to supervise
the ethical conduct of attorneys, including those representing the United States,
appearing before it.”); cf. Whitehouse v. United States District Court, 53 F.3d 1349,
1357 (1st Cir. 1995) (recognizing district court’s authority to regulate prosecutorial
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By separate orders dated October 2, 1997, Chief Judge Reasoner and Judge Wright
denied motions by Mandanici seeking their recusal in light of an alleged “appearance of
impartiality” arising in part from Judge Wilson’s comment that “the district judges of the
eastern District who were foes of the Clintons during their Arkansas days are not recusing
. . . .” See Starr II, 986 F. Supp. at 1157.
Mandanici appeals from the portion of the district court order dated October 2, 1997,
dismissing Mandanici II.16 In addition, Mandanici appeals from the separate orders of Chief
Judge Reasoner and Judge Wright declining to recuse themselves.
Discussion
As stated above, the primary issue on appeal is whether Mandanici has standing. If
Mandanici does not have standing, then this court does not have jurisdiction to
conduct); United States v. Klubock, 832 F.2d 664 (1st Cir. 1987) (en banc) (upholding
constitutionality of local rule regulating prosecutorial conduct); United States v.
Johnston, 690 F.2d 638 (7th Cir. 1982) (applying attorney-witness conflicts rule to
federal prosecutors); United States v. Splain, 545 F.2d 1131, 1135 (8th Cir. 1976)
(noting that prosecutor’s unprofessional conduct may subject him or her to disciplinary
sanctions). More important, however, is the district court’s failure to engage in the
manner of analysis that Judge Loken sets forth, infra, at 23-25, to determine whether
the appearance of a conflict (personal or otherwise) exists under federal conflict-of-
interest laws. As noted above, it is this abandonment by the district court of its
obligation to analyze the merits of Mandanici’s allegations pursuant to Rule V(A) with
which the author finds fault.
16
On June 19, 1997, Mandanici filed a third grievance alleging additional ethical
violations by Starr concerning grand jury leaks and prejudicial comments to the press
(hereinafter “Mandanici III”). The district court dismissed this grievance in its order
dated October 2, 1997. See Starr II, 986 F. Supp. at 1161–62. Mandanici does not
appeal the district court’s dismissal of the allegations set forth in Mandanici III.
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decide any other issues raised on appeal. Steel Co. v. Citizens for a Better Env’t, — U.S.
—, —, 118 S. Ct. 1003, 1012 (1998) (“‘Without jurisdiction the court cannot proceed at all
in any cause.’”) (rejecting doctrine of “hypothetical jurisdiction”) (quoting Ex parte
McCardle, 74 U.S (7 Wall.) 506, 514 (1868)). However, before examining this court’s
jurisdiction, we are obligated to determine whether jurisdiction was proper in the district
court, especially because it is not readily apparent nor was it determined conclusively by the
district court.17 See, e.g., Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986)
(“[E]very federal appellate court has a special obligation to ‘satisfy itself not only of its own
jurisdiction, but also that of the lower courts in a cause under review,’ even though the
parties are prepared to concede it.”) (quoting Mitchell v. Maurer, 293 U.S. 237, 244
(1934)).
There is long-standing precedent in this circuit that informants of ethics grievances
lack standing to commence a formal action, and thus have no standing to bring an appeal
in such matters. This court visited the issues of standing and jurisdiction in a case
analogous to the one at bar over thirty years ago in Mattice v. Meyer, 353 F.2d 316 (8th Cir.
1965) (Mattice), where we held that private citizens not only lack standing at law to
maintain a disciplinary proceeding as a formal action in the district court, but they also lack
standing on appeal.18 Id. at 319.
In Mattice, a private citizen, joined by other plaintiffs, filed a complaint to have the
Attorney General of Nebraska disbarred on account of an alleged ethical violation.
17
The district court wrote: “For purposes of addressing [] Mandanici’s
allegations, the Court will assume that it has jurisdiction over ethics claims involving
the Independent Counsel and that [] Mandanici has standing under our Model Rules to
pursue his claim.” Starr II, 986 F. Supp. at 1160 (footnote omitted).
18
In light of the serious nature of the underlying allegations in Mattice, this court
went further to determine whether they had any factual support and found none. See
Mattice v. Meyer, 353 F.2d 316, 319 (8th Cir. 1965).
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In dismissing the appeal from the district court’s refusal to act, this court adopted the Third
Circuit’s analysis in Ginsburg v. Stern, 125 F. Supp. 596 (W.D. Pa. 1954), aff’d, 225 F.2d
245 (3d Cir. 1955) (Ginsburg):
Plaintiff's petition, just as any other complaint of professional misconduct,
merely supplied information for the court’s consideration. It is ridiculous to
assert that the court has no alternative but to take action against the person
complained of. If the court considers that no offense has been committed; or
that the allegations of the complaint are insufficient, immaterial, impertinent
or scandalous; or that the complaint has been filed from an improper motive;
or for any other reason decides not to proceed with the matter, the complainant
has no recourse.
Mattice, 353 F.2d at 319 (quoting Ginsburg, 125 F. Supp. at 603). We further observed that
[a]n individual may, acting as an informer, make available to the district court
pertinent information bearing upon the qualifications or professional conduct
of a member of the federal bar. Beyond that point the individual may not
exercise control over the proceedings of the court. Further action, if any,
becomes the responsibility of the court.
Id.19 Thus, as the OIC contends, Mattice clearly establishes that Mandanici’s role
19
This court’s reasoning in Mattice has been cited with approval in a variety of
actions in which an individual has sought suspension or other disciplinary action against
an attorney. See Ramos Colon v. United States Attorney for the Dist. of P.R., 576 F.2d
1, 6, 9 (1st Cir. 1978) (“A private party cannot challenge the court’s decision not to
discipline. . . . It remains for the court to vindicate its authority, if it so chooses.”);
Action of Phillips, 510 F.2d 126, 127 (2d Cir. 1975) (per curiam) (“[A] private person
or a lawyer has no standing to participate in a disciplinary proceeding.”); see also In
re Echeles, 430 F.2d 347, 350 (7th Cir. 1970) (holding that United States had no
standing to appeal the result of a disbarment proceeding where nothing in record
indicated that it had an interest in the matter or was a party to the underlying suit); In
re Teitelbaum, 253 F.2d 1, 2 (7th Cir. 1958) (holding that a complainant has no standing
“as a party or otherwise” to appeal).
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begins and ends with the filing of his ethics grievance. More important, Mandanici “lacked
standing at law to maintain the proceeding as a formal action; absent the pendency of an
action,” Mandanici has no standing to appeal. Id.
Mandanici attempts to distinguish Mattice by arguing that Rule V(A) and 28 U.S.C.
§ 1291, which he contends confer jurisdiction, were adopted well after Mattice was
decided. However, the plain language of these provisions shows that they, along with Rule
8.3 of the Arkansas Rules of Professional Conduct,20 confer nothing more than standing to
complain or inform the court of alleged misconduct; none of these provisions, by their terms
or scope, confers standing to commence a case. Thus, Mandanici could bring his grievance
before the district court as an informant only. Absent an action in the district court, he
cannot appeal. Accordingly, there is no basis for this court’s jurisdiction on appeal.
Indeed, Mandanici acknowledged during oral argument that, on appeal, the
standing issue is the death knell of his ethics grievance, save one finding by this
court–that he and every other citizen of the United States have standing to pursue the
underlying grievance because of the “vital interest” that derives from the “uniqueness”
of this case and the proceedings that form its backdrop.21 Implicit in this argument,
20
Rule 8.3 requires that “[a] lawyer having knowledge that another lawyer has
committed a violation of the rules . . . that raises a . . . question as to that lawyer’s
honesty . . . inform the appropriate professional authority.” Ark. R. Prof. Cond. 8.3.
21
Mandanici finds support for his argument in Judge Eisele’s statement that “the
Pepperdine allegations suggest the type of conflict that is not waivable in that they
concern not a particular conflicted client but the integrity of prosecutorial
decisionmaking in which every inhabitant of this land has a vital interest.” See
Starr I, 986 F. Supp. at 1153 (emphasis added).
-15-
however, is the additional concession that Mandanici’s interest in pursuing this case is
no greater than any other citizen’s. Mandanici nonetheless presses his claim that this
case is so unique and the interest so vital that standing is automatically conferred upon
every citizen.
We conclude that, although the Whitewater investigation and the propriety thereof
are undoubtedly of national import, the constitutional and prudential principles of
standing compel us to reject the kind of citizen standing that Mandanici seeks to
establish. In order to satisfy Article III’s standing requirements, Mandanici must have
(1) suffered an injury in fact (2) that is fairly traceable to the challenged conduct and (3)
likely to be redressed by the proposed remedy. See, e.g., Steel Co. v. Citizens for a
Better Env’t, — U.S. at —, 118 S. Ct. at 1016-17 (citations omitted). The injury must
be “concrete and particularized,” not “conjectural” or “hypothetical,” and “must affect
the plaintiff in a personal and individual way.” Lujan v. Defenders of Wildlife, 504 U.S.
555, 560 & n.1 (1992); see also Gladstone v. Village of Bellwood, 441 U.S. 91, 100
(1979) (Gladstone) (“[A] litigant normally must assert an injury that is peculiar to
himself [or herself] or to a distinct group of which he [or she] is a part . . . .”). In other
words, the injury must be beyond that “‘shared in substantially equal measure by all or
a large class of citizens.’” See, e.g., Gladstone, 441 U.S. at 100 (quoting Warth v.
Seldin, 422 U.S. 490, 499 (1975) (Warth)); cf. Valley Forge Christian College v.
Americans United for Separation of Church and State, Inc., 454 U.S. 464, 482-83
(1982) (Valley Forge) (“This court has rejected claims of standing predicated on ‘the
right possessed by every citizen, to require that the Government be administered
according to law . . . .’”) (internal quotation omitted).
The prudential principles of standing ensure that federal courts are not “called
upon to decide questions of broad social import in cases in which no individual rights
will be vindicated, and [that] access to the federal courts [is] limited to those litigants
best suited to assert the claims.” Gladstone, 441 U.S. at 99-100. Among the prudential
concerns is the doctrine that “a litigant’s grievance must arguably fall within the zone
-16-
of interests protected or regulated by the statutory provision or constitutional guarantee
invoked in the suit.” Bennett v. Spear, — U.S. —, —, 117 S. Ct. 1154, 1161 (1997)
(Bennett) (citations omitted). See generally Association of Data Processing Serv. Org.,
Inc. v. Camp, 397 U.S. 150 (1970). “[T]he breadth of the zone of interests varies
according to the provisions of law at issue . . . .” Bennett, — U.S. at —, 117 S. Ct. at
1161. Thus, in order for Mandanici to demonstrate that he satisfies prudential principles
of standing, the provisions of Rule V(A) must afford a right of suit to those who inform
the court of the alleged misconduct proscribed by the statute.
Mandanici has failed to demonstrate that he meets the constitutional and
prudential requirements of standing. First, he has not articulated what injury he has in
fact suffered; instead he asserts that the “uniqueness” of the case confers standing (and
thus, jurisdiction) absent any constitutional basis.22 However, the uniqueness of a case
or the vitalness of an alleged interest has never been proved a proxy for the
“constitutional minima” of Article III standing and, in any event, does not absolve this
court of its duty to determine jurisdiction based on constitutional and prudential
principles. In our attempt to fulfill that duty, we cannot discern any injury that is fairly
traceable to the conduct of Independent Counsel Kenneth Starr and is distinct and
personal to Mandanici or a class of litigants of which he is a part. Indeed, Mandanici
cannot allege to have suffered an injury that is any greater than that which might have
been suffered by other concerned citizens. Under such circumstances, “[t]he federal
22
The only cases that Mandanici cites for the proposition that he has standing are
state cases, which not only do not bind this court, but also do not support Mandanici’s
theory of “citizen standing.” See Brief for Appellant at 25-26. Rather, these cases and
the treatises and professional rules that Mandanici cites on this issue merely
acknowledge the vital role that citizens and third parties play in disciplinary
proceedings by filing complaints and the standing of those persons to bring forth a such
complaints. Id. (citing Ark. R. Prof. Cond. 8.1 (“[A] disciplinary proceeding may be
initiated by [bar] counsel upon complaint of another person or entity.”), 8.3). These
sources do not decide whether a plaintiff has standing in federal court to compel
disciplinary proceedings or referral for investigation and prosecution.
-17-
courts have abjured appeals to their authority which would convert the judicial process
into ‘no more than a vehicle for the vindication of the value interests of concerned
bystanders.’” Valley Forge, 454 U.S. at 473 (quoting United States v. SCRAP, 412
U.S. 669, 687 (1973)). In light of the foregoing, we hold that Mandanici cannot
establish a sufficient injury in fact to satisfy the Article III standing requirements.
Assuming, arguendo, that the Article III requirements of standing were fulfilled,
this court still lacks jurisdiction because Mandanici cannot satisfy the judicially-imposed
prudential standing principles. See Warth, 422 U.S. at 498 (holding that standing
“involves both constitutional limitations on federal-court jurisdiction and prudential
limitations on its exercise”) (citing Barrows v. Jackson, 346 U.S. 249 (1953)). Nothing
in the language of RuleV(A) supports the view that the individual or collective concerns
of persons such as Mandanici fall within the zone of interests protected by the rule. In
short, Rule V(A) does not create a cause of action for informants; rather, Rule V(A)
merely guides the district court in the exercise of its inherent right and obligation to
oversee the integrity of the court by disciplining the bar. Moreover, Mandanici is not
a party to any proceeding involving Starr, the Whitewater investigation, or the OIC,
other than the instant case. As the district court determined earlier, Mandanici is a mere
“informer,” a supplier of information to whom the district court owes no discrete
obligation. “Congress may grant an express right of action to persons who otherwise
would be barred by prudential standing rules,” id. at 501; however, it has not done so
in this context. Accordingly, Mandanici has no standing to bring this appeal.
Finally, we feel obliged to explore two other possible grounds for appellate
jurisdiction, each of which fails for different reasons. First, it is well-established that
courts of appeal may exercise supervisory authority over lower courts. See, e.g., La
Buy v. Howes Leather Co., 352 U.S. 249, 259-260 (1957). Such authority is typically
exercised in the context of criminal proceedings, but has been extended on occasion to
monitor the adjudication of civil and quasi-criminal matters. See, e.g., In re Globe
Newspaper Co., 920 F.2d 88 (1st Cir. 1990) (Globe); In re Furlong, 885 F.2d 815, 819
-18-
(11th Cir. 1989); In re Snyder, 770 F.2d 743 (8th Cir. 1985). These extensions
notwithstanding, this court has circumscribed its exercise of supervisory authority to the
“judicial activities” of the district courts. In re Pickett, 842 F.2d 993, 995 (8th Cir.
1988). Although the underlying allegations may give rise to disciplinary proceedings
which constitute judicial activity, we believe that our supervisory authority is further
circumscribed by Mandanici’s lack of a personal interest in this litigation.
Indeed, this case is distinguishable from Globe, where the First Circuit took
jurisdiction under the All Writs Act to review a district court’s decision to deny public
access to the names and addresses of jurors in a prior criminal trial. 920 F.2d at 90.
There the court held that the interest of news gathering and the privacy rights of jurors
were an appropriate matter for consideration under the court’s supervisory powers. Id.
at 90. More important, the court noted that denying access to this information “affects
news gathering” and implicates important constitutional and common law rights. Id. at
90, 94–96. The court also interpreted § 10(c) of the District of Massachusetts Plan for
Random Selection of jurors as making this information available subject to certain
judicial findings that were not made by the district court. However, unlike the petitioner
in Globe, Mandanici has no right, by statute or common law, that is implicated by the
district court’s failure to make a referral under RuleV(A). As noted above, Mandanici
cannot demonstrate any injury peculiar to him or to a class of citizens of which he is a
part. For these reasons, this court is reluctant to exercise its supervisory authority over
the district court in this context.
Second, Rule 46(b) of the Federal Rules of Appellate Procedure provides in
pertinent part: “When it is shown to the court that any member of its bar has been
. . . guilty of conduct unbecoming a member of the bar of the court, the member will be
subject to suspension or disbarment by the court.” Fed. R. App. P. 46(b). Independent
Counsel Kenneth Starr was admitted to the bar of this court on May 9, 1995, and thus,
like any other attorney of this court, is subject to this rule. However, as should be
obvious from its similarity to Rule V(A), Rule 46 fails to confer standing upon
-19-
Mandanici (and thus, jurisdiction upon this court) for the same reasons that Rule V(A)
fails to do so–neither rule elevates Mandanici’s status above that of an informant.
Conclusion
In sum, Mandanici has no standing to pursue his grievance in the district courts
of this circuit beyond informing those courts of alleged misconduct, and no standing to
appeal. Accordingly, we dismiss this appeal for lack of jurisdiction.23
BEAM, Circuit Judge, with whom LOKEN, Circuit Judge, joins, concurring in part.
I concur in the result reached by Judge McMillian. I agree with those portions
of his opinion holding that Mr. Mandanici has insufficient Article III standing to file
either an initial action or an appeal seeking the imposition of lawyer discipline by the
district court or by this court and with those portions holding that we do not have
jurisdiction to reach the merits, if any, of Mr. Mandanici's allegations. However, I
would go no further.
I first note that it is not entirely clear from the record how the district court treated
the letter-complaints filed by Mr. Mandanici. If the letters were simply treated as
disciplinary grievances, then the district court had inherent power to consider the
substantive allegations contained therein. See Mattice v. Meyer, 353 F.2d 316, 319 (8th
Cir. 1965). Otherwise, if they were treated as complaints filed by Mr. Mandanici as a
party to the action, the district court had no jurisdiction to consider the merits.
Although it is fundamental that every court has inherent authority to disbar or
23
All substantive issues raised by Mandanici on appeal, including the denial of
his motions to recuse, are moot in light of our jurisdictional disposition.
-20-
discipline attorneys for unprofessional conduct, that is not the nature of this matter as
presented in this court. See id. As noted by Judge McMillian, for more than thirty years
this circuit has maintained that an individual such as Mr. Mandanici lacks standing to
"institute and maintain" an action or an appeal seeking discipline against or disbarment
of a lawyer. Id. at 318; accord In re Continental Steel Corp., 966 F.2d 1456 (7th Cir.
1992) (unpublished table decision) (embracing Mattice specifically). A person who files
an ethics grievance concerning a particular attorney does nothing more than "suppl[y]
information for the court's consideration." Mattice, 353 F.2d at 319 (citation omitted).
He does not thereby "initiate an action." Id. If the district court "decides not to proceed
with the matter, the complainant has no recourse." Id. (citation omitted). Therefore,
Mr. Mandanici's current effort before this court must be construed as an attempt to
invoke our Article III jurisdiction to seek review of an unappealable event.
"Article III of the Constitution limits the 'judicial power' of the United States to
the resolution of 'cases' and 'controversies,'" and "[a]s an incident to the elaboration of
this bedrock requirement, [the Supreme Court] has always required that a litigant have
'standing' to challenge the action sought to be adjudicated in the lawsuit." Valley Forge
Christian College v. Americans United for Separation of Church and State, Inc., 454
U.S. 464, 471 (1982). The federal courts must consider their own jurisdiction, "and
standing 'is perhaps the most important of [the jurisdictional] doctrines.'" United States
v. Hays, 515 U.S. 737, 742 (1995) (quoting FW/PBS, Inc. v. Dallas, 493 U.S. 215, 230-
31 (1990)) (alteration in original). Thus, in this appeal, the first and fundamental
question is that of jurisdiction, both in this court and in the court from which the record
comes. See Steel Co. v. Citizens for a Better Env't, 118 S. Ct. 1003, 1012 (1998). This
requirement is a threshold matter that "'spring[s] from the nature and limits'" of the
federal judicial power and is "'inflexible and without exception.'" Id. (quoting
Mansfield, C. & L.M.R. Co. v. Swan, 111 U.S. 379, 382 (1884)) (alteration in original).
When this first question is answered, it is clear that Mr. Mandanici lacks standing
directly to assert his various disciplinary complaints, see Opinion of McMillian at 17,
and, as a result, this court does not have the jurisdiction or the power to consider them
-21-
in any manner whatsoever. See Whitmore v. Arkansas, 495 U.S. 149, 154-55 (1990).
Without jurisdiction, which is clearly absent here, this court "'cannot proceed at
all in any cause. Jurisdiction is power to declare the law, and when it ceases [or fails
to exist in the first instance], the only function remaining to the court is that of
announcing the fact and dismissing the cause.'" Steel Co., 118 S. Ct. at 1012 (quoting
Ex parte McCardle, 7 Wall. 506, 514 (1868)). Accordingly, our proper course of action
is to announce our complete lack of jurisdiction and to dismiss this case.
LOKEN, Circuit Judge, with whom BEAM, Circuit Judge, joins, concurring:
I agree with Judge Beam that we should simply dismiss this appeal for lack of
jurisdiction because Mr. Mandanici lacks standing to appeal. Judge McMillian has
concluded that some discussion of the merits is in order. He then goes on to propose
that whenever an independent counsel is conducting grand jury proceedings, the district
court must investigate any charge that the independent counsel is tainted by an apparent
political conflict of interest. With all due respect, I believe this startling proposition is
sufficiently misguided -- both legally and historically -- to require a response.
Judge McMillian cites no federal authority for his proposed rule. In fact, it is
contrary to the Independent Counsel Act and the statutes and regulations governing
other federal prosecutors. Initially, the Independent Counsel Act had no provisions
regulating independent counsel conflicts of interest. In 1987, the Department of Justice
announced that independent counsel were subject to federal conflict-of-interest laws as
Department employees. Congress, rebelling at what some viewed as “a back-door
assault on the independent counsel law,”24 amended the statute in 1988. First, Congress
24
Beth Nolan, Removing Conflicts from the Administration of Justice: Conflicts
of Interest and Independent Counsels under the Ethics in Government Act, 79 Geo. L.J.
1, 29 (1990).
-22-
added 28 U.S.C. § 594(i), which declares independent counsel separate from the
Department of Justice for these purposes. Of greater significance here, Congress added
28 U.S.C. § 594(j), which contains specific “standards of conduct applicable to
independent counsel.” This statute places specific conflict-of-interest restrictions on
permissible outside employment for a private attorney while serving as independent
counsel, and on the clients that a former independent counsel may represent for one to
three years after his or her duties as independent counsel terminate. Congress did not
in this statute place any limitations on an independent counsel’s political activities. It
appears that Mr. Mandanici has never accused Independent Counsel Starr of even an
arguable violation of this controlling statute.
Although independent counsel are not Department of Justice employees, they are
directed, “except to the extent that to do so would be inconsistent with the purposes of
this chapter, [to] comply with the written or other established policies of the Department
of Justice respecting enforcement of the criminal laws.” 28 U.S.C. § 594(f).25 Thus, in
looking at the question of an independent counsel’s political conflicts of interest, any
standards governing other federal prosecutors are relevant, particularly because the
federal statute addressing this subject, 28 U.S.C. § 528, was enacted as part of the
Ethics in Government Act, the statute that first authorized the appointment of
independent counsels. Section 528 directs the Attorney General to:
promulgate rules and regulations which require the disqualification of any
officer or employee of the Department of Justice, including a United States
attorney . . . from participation in a particular investigation or prosecution
if such participation may result in a personal, financial, or political conflict
25
Independent counsel are also“special Government employees” for purposes of
the federal crimes relating to bribery, graft, and conflicts of interest. See 18 U.S.C.
§ 202(a). There has been no allegation that Independent Counsel Starr has violated any
of those criminal statutes.
-23-
of interest, or the appearance thereof.
In response, the Attorney General promulgated 28 C.F.R. § 45.2 (formerly 28 C.F.R.
§ 45.735-4), which provides in relevant part:
(a) Unless authorized under paragraph (b) of this section, no
employee shall participate in a criminal investigation or prosecution if he
has a personal or political relationship with:
(1) Any person or organization substantially involved in the conduct
that is the subject of the investigation or prosecution; or
(2) Any person or organization which he knows has a specific and
substantial interest that would be directly affected by the outcome of the
investigation or prosecution.
* * * * *
(c) For the purposes of this section:
(1) Political relationship means a close identification with an
elected official, a candidate (whether or not successful) for elective, public
office, a political party, or a campaign organization, arising from service
as a principal adviser thereto or a principal official thereof.
This is a narrow definition of a disqualifying political conflict of interest. By no stretch
of the imagination does Independent Counsel Starr have a “political relationship” with
Pepperdine University or publisher Scaife within the meaning of § 528(c)(1). And it is
nearly as preposterous to speculate that Pepperdine or even Scaife has a “specific and
substantial interest” that would be “directly affected” by Mr. Starr’s grand jury
investigations. Thus, the rule proposed by Judge McMillian finds no support in the most
pertinent federal statutes and regulations.
-24-
Looking at the question more broadly, it is not surprising that federal law does
not restrict or disqualify prosecutors on the basis of vaguely defined political conflicts
of interest. Judge McMillian’s proposal seems premised on the notion that prosecutors
should be subject to the same conflict-of-interest standards as judges. But that ignores
the very different public functions these officeholders perform. As the Supreme Court
explained in Marshall v. Jerrico, Inc., 446 U.S. 238, 248-50 (1980):
Prosecutors need not be entirely “neutral and detached.” In an adversary
system, they are necessarily permitted to be zealous in their enforcement
of the law. . . . Prosecutors are also public officials; they too must serve
the public interest. . . . [T]raditions of prosecutorial discretion do not
immunize from judicial scrutiny cases in which the enforcement decisions
of an administrator were motivated by improper factors or were otherwise
contrary to law. . . . But the strict requirements of neutrality cannot be the
same for . . . prosecutors as for judges, whose duty it is to make the final
decision and whose impartiality serves as the ultimate guarantee of a fair
and meaningful proceeding in our constitutional regime.
(Citations omitted.) For these reasons, prosecutor disqualification cases have primarily
focused on issues specifically addressed in 28 U.S.C. § 594(j) -- whether the prosecutor,
or a private party who is a client of the prosecutor, has a direct personal or financial
interest in the criminal proceeding at issue. Cf. Young v. United States ex rel. Vuitton
et Fils S.A., 481 U.S. 787, 805-08 (1987).
As even a brief look at history will confirm, judicial reluctance to question a
prosecutor’s political background or views is even more important in the type of
criminal proceeding at issue in this case, the investigation of corruption and other
misconduct by high-ranking government officials. The Independent Counsel Act reflects
congressional recognition that effective investigation of on-going misconduct requires
prosecutors who “enjoy some measure of independence from the Executive Branch.”
In Re Olson, 818 F.2d 34, 42 (D.C. Cir. 1987). The impetus for aggressive
-25-
investigations has usually come from an officeholder’s political opposition.26 Therefore,
it is not surprising that some of our most well-known and successful corruption fighters
have been investigators and prosecutors who brought to the task highly partisan
backgrounds and strong personal political ambitions.
For example, a congressional investigation into the Gold Panic scandal during the
Grant Administration was led by Republican James A. Garfield, later President of the
United States. In the 1920’s, after being forced by a special act of Congress to
investigate the Teapot Dome scandal, President Coolidge chose as investigators
Democratic Senator Atlee Pomerene, then running for reelection,27 and Republican
attorney Owen Roberts, who later became an Associate Justice of the Supreme Court.
In the early 1930’s, New York City’s Tammany Hall machine was broken by the
relentless investigations of Judge Samuel Seabury, a long-time Democratic political
activist who blamed the Tammany machine for his unsuccessful campaign for Governor
26
Independent counsel before and after Mr. Starr have usually been chosen from
the opposing political party. The first independent counsel, Archibald Cox, had been
Solicitor General in the Johnson Administration. The Honorable J. Harvie Wilkinson
& The Honorable T.S. Ellis, The Independent Counsel Process: Is It Broken and How
Should It Be Fixed?, 54 Wash. & Lee Rev. 1515, 1539 (1997). Republican Arthur
Christy investigated President Carter’s Chief of Staff, Hamilton Jordan. Constance
O’Keefe & Peter Safirstein, Fallen Angels, Separation of Powers, and the Saturday
Night Massacre: An Examination of the Practical, Constitutional, and Political Tensions
in the Special Prosecutor Provisions of the Ethics in Government Act, 49 Brook. L.
Rev. 113, 124 n. 51 (1982). The Clinton Administration appointed Republican Robert
Fiske to investigate the death of Vincent Foster. Gerard E. Lynch & Philip K. Howard,
Special Prosecutors: What’s the Point?, Washington Post, May 28, 1995, at C7.
27
It was believed that Pomerene’s “prominence as co-counsel in the [case] would
help him” in the election, but ironically he was defeated by a Harding Administration
friend and defender. M.R. Werner & John Starr, Teapot Dome 211 n.1 (1973).
Pomerene remained active in politics. He withdrew as a Democratic candidate for
President in 1928 in favor of Alfred E. Smith and was later appointed by President
Hoover to chair the Reconstruction Finance Corporation in 1932.
-26-
of New York in 1916.28
Another famous investigator was the highly partisan Thomas E. Dewey, who
actively sought appointment as a New York prosecutor to investigate mob criminal
activity in 1935. “[F]rom the outset, Dewey and his allies saw the prosecutor’s post as
a stepping-stone to the governorship and the White House,” and it was widely suspected
that Dewey’s mentor, United States Attorney George Medalie, promoted Dewey for the
position to gain control of the Republican party.29 After a long delay, Dewey was
“reluctantly designated” by the Democratic Governor.30 Driven by ambition, Dewey
pushed his staff relentlessly, searched for a case “that would bring glory to his
investigation,” and in the process incited Mayor La Guardia to fits of jealousy.
Ultimately, however, Dewey brought down bootlegger Waxey Gordon, various mafia
loan sharks, and Lucky Luciano, feats which no other New York prosecutor had even
dared.31 Republican Dewey’s prosecutorial fame later helped him become Governor of
New York, and he made three unsuccessful runs for the Presidency, losing narrowly to
President Truman in the 1948 presidential election.
Yet another well-known example of a politically active prosecutor who furthered
his political career by successfully fighting official misconduct was “Big Jim”
Thompson, the Republican County Attorney who in the early 1970's investigated
corruption by Democratic Chicago politicians and a United States Circuit Judge.
28
Corruption fighter Seabury was a Franklin Roosevelt rival for the Democratic
presidential nomination in 1932. He became Mayor Fiorello La Guardia’s trusted
advisor and made another unsuccessful run for Governor in 1934. Herbert Mitgang,
The Man Who Rode the Tiger 335 (1963).
29
Mary M. Stolberg, Fighting Organized Crime, 65 (1995).
30
Rupert Hughes, Attorney for the People, 60 (1940).
31
Stolberg, supra note 29, at 99, 107-08, 116.
-27-
Success in indicting and convicting members of Mayor Daley’s machine helped propel
Thompson to the governor’s mansion and national political prominence.
Just as successful investigators of the past were usually political activists, the
government officials under investigation invariably sought to undermine their efforts
with charges that the investigations were tainted by partisan politics. The Teapot Dome
scandal was shrouded in partisan debate. Democrats initiated the call for investigation
and used congressional hearings to attack Republicans, for example, by staging debates
with empty Republican chairs demanding to know more of the crisis.32 Conversely,
investigators Roberts and Pomerene endured numerous attempts by the Republican
administration to sabotage the investigations. At the Departments of Justice and the
Navy, books were unavailable, requests for information ignored, witnesses could not
recall key information, and on occasion sensitive materials had to be taken by force.33
Pomerene and Roberts ultimately won convictions, but the accused maintained they
were victims of shrewd maneuvering by Democrats who had railroaded them into jail.34
Judge Samuel Seabury also found that entrenched political power rarely gives
ground without a fight. When Tammany Hall’s initial roadblocks caused Seabury to
intensify his investigations, those in power -- from Mayor Jimmy Walker down to the
lowest City clerk -- responded by blocking Seabury’s staff, cutting his budget, and
forcing him to get court orders to obtain records.35 Judge Seabury’s investigations were
assailed by Democrats and Republicans alike, whenever it suited their own political
agendas. A common Tammany Hall tactic was to attempt to turn Seabury’s
32
Burl Noggle, Teapot Dome: Oil and Politics in the 1920's, 167-68 (1962).
33
Werner & Starr, supra note 27, at 161-68.
34
Werner & Starr, supra note 27, at 280.
35
Mitgang, supra note 28, at 196-97.
-28-
investigation into a political battle.36 Similarly, attorneys opposing prosecutor Thomas
Dewey found it useful during closing arguments to tell jurors that Dewey was really
running for Governor of New York.37 And when Jim Thompson prosecuted Judge Otto
Kerner, a former Illinois Governor and Mayor Daley confidante, Kerner claimed he was
the victim of a political witch hunt, while others claimed that President Nixon was
seeking revenge from Illinois Democrats because he failed to carry the State in 1960.38
A plethora of interviews, articles, and books painted Thompson as a politically
motivated opportunist, and similar allegations were leveled by Cook County Clerk
Edward Barrett after his conviction.39
History’s message is clear -- investigating misconduct by those in high office is
bruising political work. That message is confirmed by our more recent experience under
the Independent Counsel Act. Targets from both political parties have invariably
decided that the best way “to blunt the political damage posed by an investigation is to
attack as biased the [independent counsel], or the judges that appointed him.”40
The question, then, is whether the judiciary should interfere in this process in the
manner suggested by Judge McMillian and Judge Eisele, mounting judicial
investigations of independent counsel whenever a citizen identifies an apparent political
conflict of interest. In my view, the answer is a resounding no. America has benefitted
from a long tradition of investigators and prosecutors who have zealously worked to
36
Mitgang, supra note 28, at 224-226, 259.
37
Stolberg, supra note 29, at 148.
38
Hank Messick, The Politics of Prosecution, 102 (1978); Robert E. Hartley, Big
Jim Thompson of Illinois 43 (1979).
39
Hartley, supra note 38, at 55, 59.
40
Julie O’Sullivan, The Independent Counsel Statute, 33 Am. Crim. L. Rev. 463,
464 (1996).
-29-
uproot deeply entrenched official misconduct. Some of the most successful were
activists with well-publicized political ambition. Most were derided for harboring
partisan viewpoints and personal ambition. Such charges are to be expected when the
political stakes are high. The very reason political activists are effective prosecutors is
because of their “impure” political motives. Conversely, the worst corruption occurs
when one political party is dominant, precisely because a healthy political opposition
will stimulate investigation and, if needed, reform.41 If judges undertake to “investigate
the investigators,” using vague standards such as apparent political conflict of interest,42
it will inevitably politicize the judiciary and weaken legitimate efforts to weed out
misconduct.
If independent counsel are to accomplish the purposes for which successive
Congresses have created and consistently supported that Office, general allegations of
partisanship, past political activity, and future political ambition cannot be grounds to
disqualify an independent counsel or to launch a distracting judicial investigation. Of
course, the judiciary must intervene when any prosecutor has a personal or financial
conflict of interest in a particular prosecution, or otherwise infringes the rights of a
criminal defendant or a target of a grand jury investigation. But Mr. Mandanici brings
41
George C.S. Benson, Political Corruption in America 65 (1978).
42
Judge McMillian argues that I have inaccurately characterized his concerns as
being limited to Mr. Starr’s apparent political conflict of interest. See ante p.11, note
15. It is true that Judge Eisele’s opinion focused on Starr’s alleged “personal, financial,
and career interests.” But in this situation, Mr. Mandanici’s assertion of a personal
conflict of interest is nothing more than a thinly veiled attack on Mr. Starr’s perceived
political ambitions, like the attacks on prosecutors Seabury, Dewey, and Thompson in
prior years. In other words, in this context, the perceived personal conflict of interest
is a political conflict of interest. Moreover, the possibility that success may enhance
a prosecutor’s career and thereby lead to future financial rewards does not alter the
basic nature of the alleged conflict -- the prosecutor’s political views and ambitions.
What Mr. Mandanici fears is that success may propel Independent Counsel Starr’s
political, i.e., his personal, financial, and career advancement.
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no such specific charges. He simply wants the judiciary to shackle this independent
counsel to serve his own political goals. There is nothing wrong with citizen Mandanici
having a political agenda. But it would be wrong, that is, unsound in both theory and
practice, for the judiciary to provide a forum to further that political agenda. The district
court was wise not to take action on his complaints.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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