In Re: Independent Counsel Kenneth W. Starr, United States Department of Justice v. Francis T. Mandanici

mark, Corp., Inc. v. Coram Healthcare (7th Cir.1997) (holding

F.3d causation). sufficiently alleges assertion loss sufficiently alleged We conclude Franklin misrepresentations proximately counties’ Reves, injuries. caused its See F.2d at 1332.

We reverse the district court’s order granting judgment pleadings and re- proceedings. mand for further In re: Counsel Kenneth STARR, Appellee,

W. UNITED DEPARTMENT STATES JUSTICE,

OF MANDANICI, Appellant. Francis T.

No. 97-3939. Appeals, United States Court of Eighth Circuit. March Submitted Decided June 742 Mandanici, pro T. se

Francis Jahn, Rock, AR, LeRoy Little ar- Morgan (Darrell brief), gued Joseph, M. Appellee. McMILLIAN, BEAM and

Before LOKEN, Judges. Circuit McMILLIAN, Judge. Circuit Mandanici, attorney T. who Francis Connecticut, appeals pro se from resides in final in the United States orders entered Eastern District of District Court for the Arkansas, dismissing grievance” his “ethics brought under the color Rule Bar Model Federal American Association’s Enforcement,1 In re Disciplinary Rules of Starr, (E.D.Ark.1997) F.Supp. 986 1159 (Starr II), denying his motions for recu Id., (E.D.Ark.1997) F.Supp. 1157 sal. J.); id., (E.D.Ark. (Wright, F.Supp. C.J.). 1997) (order) (Reasoner, reversal, For argues Mandanici the district court alternative, or, in its discre erred abused refusing grievance to refer his tion prosecution investigation and the of a formal V(A). disciplinary proceeding under Rule argues Rea Mandanici also Chief Judge Wright soner and abused their discre refusing tion to recuse themselves adjudication grievance. of Mandanici’s below, For reasons we dismiss discussed jurisdiction. for lack of

Background2 griev- from an “ethics originated

This case Judges ance” addressed to the District District for the Eastern United States Court District of Arkansas in the form of a letter (hereinafter 11,1996 September dated “Man- I”). letter, danici In that Mandanici com- plained to the court that district (and, pre- Counsel Kenneth W. Starr violated District for the East- Rules of Professional Conduct as the State of 1. The United States Court adopted professional responsibility. ern District of Arkansas has the Ameri- code of Arkansas’s Ass’n, can Bar Association’s Model Federal Rules of Bar 287 Ark. See In re Arkansas Disciplinary provide that the Enforcement S.W.2d apply professional the code of must responsibility adopted by highest court of a more detailed discussion of the factual For which, sits, state in which the district court case, procedural background see Starr case, is Arkansas. See Local Rules for II, (E.D.Ark.1997) F.Supp. 1164-66 App.- Eastern & Western Districts of Arkansas id, J., (Eisele, dissenting); VI(B). Supreme Rule The Arkansas Court has (Starr I). (E.D.Ark.1997) 1145-47 adopted Model the American Bar Association's violate) (J.A.) (Letter pendix sumably, continues to ethical rules at 247 from Michael E. concerning during Shaheen, conflicts of interest Jr.6 to Chief Reasoner of widely 1997). of what is known' as the course White- Feb. The letter further stated: investigation. Specifically, water Mandanici respect With to the allegation of a conflict alleged that Starr’s substantial ties with the RTC, of interest regarding the it is true Republican Party create a conflict of interest presented that the materials to [the DOJ] Republican Party has a stake in because on their face indicate that [ ] Starr one investigation. the outcome of the Whitewater may time have from at suffered least a alleged Mandanici also that has or at Starr technical conflict of interest. arising one time had a conflict of interest out those materials also make clear that no investigation of his of the now-defunct Reso- such point. conflict exists at this Conse- (RTC) Corporation lution Trust in connection quently, there is support no information to with Whitewater and a lawsuit that the RTC proposition conflict, a such if in against filed Starr’s law firm.3 Mandanici existed, actually fact it ever substantially alleged ultimately that the lawsuit was set- impairs ability Starr’s carry [ ] current $300,000, in saving tled secret for Starr’s out the duties of his office. $700,000. firm an estimated Id. light allegations, of these Mandanici requested that the district court refer both receiving copy After of the DOJ’s re- investigation prosecution, matters for sponse, grievance Mandanici reasserted his V(A) Rules,4 pursuant to Rule of the Model to the district court in a letter dated March sought disciplinary against enforcement (hereinafter II”). “Mandanici This disbarment, in suspension, Starr the form of time Mandanici focused on allega- the RTC reprimand, or other sanction. The district allegation tions and the added that Starr’s initially judges voted to refer the matter to acceptance deanship then-recent of a at the Attorney review, pursuant General for (SPP) Policy Pepperdine School of Public 596,5 § upon 28 U.S.C. which confers the University created a conflict of interest. Ac- Attorney power General the to remove an Mandanici, cording to the latter conflict de- independent counsel. See id. The United from rived the SPP’s substantial endowment (DOJ) Department respond- States of Justice Scaife, from Richard Mellon whose criticisms 7, 1997, by February ed letter dated widely publi- of President Clinton have been stated, pertinent part, that the DOJ would alleged cized. Mandanici that Scaife has against take no action because Starr spent promote millions of dollars to presented “materials have been ... do investigation press Whitewater and to a me- allegations by not contain [ conduct ] campaign dia discredit the President. that can Starr be viewed as so ‘extreme’ as to 1, 1997, Attorney August call for the General’s use of the On the district court filed extraordinary power Ap- published opinions of removal.” Joint the first of its in this D.C., V(A). partner Washington, 3. Starr is a in the Mod. R. Disc. Enf. fed. Chicago-based office of the law firm Kirkland & provides part: 5. Section 596 relevant Ellis. independent may An ... counsel be removed office, by impeachment provides: 4. Rule -other than conviction, only by action of the When misconduct or of miscon- cause, Attorney only good General and duct, substantiated, which if would warrant (if physical disability prohibited or mental discipline part attorney on the of an admitted protecting persons law from discrimination practice before this Court shall come to the disability), of such basis ... or Court, attention of a whether substantially impairs condition otherwise, complaint applicable and the performance independent of such counsel’s procedure is not otherwise mandated these duties. Rules, shall refer matter to coun- 596(a) (West (foot- Supp.1997) 28 U.S.C.A. prosecution sel for and the aof omitted). note disciplinary proceeding formal or the forma- may Respon- tion of such other recommendation as Counsel with Office of Professional appropriate. sibility of the DOJ. however, (Starr I), limited, Pepper- tions was re matter.7 issue, and did not address (E.D.Ark.1997). dine-Scaife opinion set forth The allegations.10 RTC Judges Roy, recusal of for the the bases Wilson, opinion Woods, Moody.8 The matter, the district preliminary aAs analysis of lengthy, critical also contained not a was determined court11 by Judge allegations, authored Mandanici’s Id. at 1148. The district court “real issue.” Eisele, majorities court which different grievance as that of a Mandaniei’s treated Judge Ei- Id. at 1145-55. joined part.9 anony- party, other third even “witness or originally printed analysis mous, was court of ... sele’s who informed the In re see slip opinion, representation.” alleged court’s earlier conflict in counsel’s (E.D.Ark. Starr, Further, May emphasized Id. the district No. LR-M-97-91 1997) party to action question is not a (slip op.), and addressed that Mandanici court, “person nor is he a pending the court’s before the court standing, rules of the upon ability a motion allegations in to submit authority, and the substantive duty-bound to act.” Id. allega- the Court is of the which II. His discussion Mandanici laws))). 1997, sug- expressly from slip DOJ refrained May The the district court filed 7. On allegations briefing question gesting warrant- opinion ordering whether Mandanici’s on Starr, standing. LR-M- court and in- In re No. ed review the district Mandanici’s further 30, 1997) (E.D.Ark. (slip op.). gather any May that it "did not 97-91 formed the court bearing [the the issues before additional facts on Moody Judge himself at the outset of 8. recused at 253. district] court.” Id. I, litigation. See Starr 986 Mandanici II the F.Supp. contrast, reviewing allegations By of ethical confirmed at 1155. His recusal was bar, members of its the district violations of the August opinion. Id. the district court’s may that are not court consider lesser sanctions 1155. required subject exacting to the same standards § Attorney under 596. General for removal Judge Chief Reasoner 9. See notes 11-12. infra Thus, analysis may guide § the DOJ’s 596 while Wright Judges dissented from Howard and and own, indepen- conducting its the district court analysis Id. at Judge and conclusions. Eisele’s allegations, that dent assessment of Mandanici's certainly analysis applicability and of limited is required may supplant of the district that opinion light "In of the Justice The states: foregoing, light the author of court. In regarding Department's response the older RTC opinion court im- believes that the district allegations, longer reason the Court no finds Pepperdine- analysis properly limited its allegations." at 1147. the RTC Id. to address Scaife issue. opinion, speaking for himself The author of this arises, however, question separate as A only, disagrees with this conclusion. referral of the RTC whether the district court's pursu- analyzed allegations the RTC The DOJ Attorney allegations General constitutes to the imposes § the strict 28 U.S.C. which ant to V(A) compliance as to the with Rule effective cause,” "good that and determined standard of allegations. The Office of RTC Indeed, Con- there was no basis for removal. (OIC) candidly that the main submits power gress that the removal has made clear was to purpose the district court’s referral penalize applied minor tech- not be should requirements of whether the threshold determine duties. See of ethical or other nical violations is, met; V(A) the district court Rules Shaheen, (Letter E. Jr. J.A. at 247 from Michael alleged con- sought determine whether the (cit- Judge dated Feb. to Chief Reasoner duct, substantiated, subject be to disci- if could Cong., (July ing S.Rep. 2d No. 97th Sess. plinary this court does not action. 14, 1982), reprinted in 1982 U.S.C.C.A.N. ultimately Mandanici’s alle- reach the merits of (”[W]e Attorney General stress deciding gations, this issue. it will refrain from only power in [or her] use his removal should Further, cases....”))). extreme, necessary Woods, Eisele, Roy, Wilson. 11.Judges "apart opined the context of re- DOJ moval," Judges Judge Howard and Chief Reasoner properly "address DOJ could not Wright opined that Mandanici lacked any allegations Starr has a conflict of [] grievance to the court because submit his ethics subject independent An counsel is interest. manipulate interloper out to "Mandanici is an only Department discipline of Justice political purposes ... the Court for his statutory through mechanism." J.A. removal I, political vendetta.” Starr Shaheen, constitute a efforts (Letter Jr. to from Michael E. at 252 addition, they point F.Supp. out at 1148. In (citing May Judge dated Chief Reasoner personal interest in the has no 594(i) (each that Mandanici independent counsel is 28 U.S.C. Indepen- investigating as pur- that Starr is independent matters separate of the DOJ for dent Counsel. Id. enforcing of interest poses criminal conflict case, precatory In of the merits of the its discussion nature and give does not rise strict, rejected textuahst the district obligation part to an on the of the district V(A), provides per- reading of Rule which court to refer complaints such for investiga- part: tinent prosecution.12 tion and light Id. 1149. In allegations misconduct or of miscon- When of this respective determination and their duct, substantiated, would warrant friendships with the and Mrs. Clin- President discipline part attorney of an admit- ton, Woods, Judges Roy, and Wilson recused practice ted to before this Court shall themselves.13 Id. at 1156. come to the attention of a subsequent opinion granting a motion Court ... shall refer the matter by the OIC to dismiss Mandanici’s com- prose- to counsel for and the plaints, Judge Wright, disciplinary proceeding writing majori- cution of a formal for the ty,14 or the formation of such other recommen- determined that Mandanici’s may appropriate. dation as did not warrant referral for investigation and II, prosecution. V(A) at 1168. (emphasis Mod. Fed. R. Disc. Enf. add- ed). conclusion, that, reaching despite The district court its district court held V(A)’s “shall,” use language specifically of the word Rule following relied on the factors: language, district court inquiry.")). 12.The reasoned that it should "be that ends the Rule adapt [local rules] able to to unforeseen circum- plainly requires thus the district court to refer stances,” inflexibility reading and that in Rule allegations of misconduct to counsel for investi- V(A) “unreasonable, unfair, could lead to and gation prosecution. and light unwise results when viewed in purposes” of the overall This conclusion is not inconsistent with the I, disciplinary of the rules. Starr 986 rule of this and other courts that district courts F.Supp. at 1149. The district court stat- further great interpret should be accorded deference in reading mandatory ed that referral into Rule Indeed, ing appellate their own rules. V(A) would be inconsistent with the district courts have noted that a district court's inherent practice adopted court's since it the Model Rules power discipline attorneys practice to who before years ago. over 20 See id. obligation it does not the court absolve from its dissent, Wilson, Judges Roy, and Woods implement to follow the rules it created to its mandatory duty Thalheim, asserted that Rule creates a power. exercise of such Matter 853 allegations investigation. 383, (5th to Cir.1988); Abrams, refer Mandanici’s for F.2d 388 Matter of opinion, speaking 1094, (3d See id. The author of this for Cir.1975); Congre 521 F.2d 1104 cf. only, agrees interpretation Touche, himself with the of the Co., gation the Passion v. & 854 Ross dissenting judges. (7th Cir.1988) that, (noting despite F.2d 223 "[T]he words of a rule are intended to commu- given considerable discretion to district courts in meaning nicate a addressed, to rules, those to whom are interpreting their local courts of carry gloss, rather than to some hid- will reverse a district court’s construction of its judges den in the minds the who drafted the clearly rule whenever the own district court has Wright, rule.” 12 A. Charles Arthur R. Miller & rule); misconstrued the 12 Federal Practice and Marcus, L. Richard Federal Practice and Proce- (same). Moreover, § Procedure 3153 the Su (2d ed.1997). § dure 3153 The word "shall” has preme plain Court held that the has command of consistently imperative been held to create an or given doing a statute should be effect "even if See, e.g., Milberg command. Lexecon Inc. v. longstanding practice that will reverse the under - Lerach, -, Hynes Weiss Bershad & Lexecon, the statute and the rule.” - U.S. -, 956, 962, (1998) 118 S.Ct. 140 L.Ed.2d 62 -, (citation omitted); 118 S.Ct. at 962 see also that, (Lexecon) term, (observing statutory as a Gardner, 115, 122, Brown v. 513 U.S. 115 S.Ct. " normally obligation ... 'shall' creates an im- (1994) ("Age L.Ed.2d 462 130 is no antidote discretion”) pervious judicial (citing Anderson statute.”). inconsistency to clear with a 482, 485, Yungkau, v. 329 U.S. 91 Judge notably (1947); Swenson, Wilson wrote of their recusal: L.Ed. 436 755, v. F.2d 381 Stanfield (8th Cir.1967) ("When used in the stat- recusing Those of us who are do not do so generally regarded utes the word 'shall' is as an lightly. realizing probably We do this that this imperative mandatory or and therefore one killing the has plaint effect of the Mandanici II com- given compulsory meaning.”). which must be having without it been considered on the Where, here, meaning as of the rule clear is fact, escape it merits. is hard to the conclu- language, inquiry required. from its no further is may sion that our recusal well confer de facto Co., Drilling Estate Cowart v. Nicklos 505 U.S. Counsel, immunity with (1992) 120 L.Ed.2d 379 respect complaints. to ethical violation ("[C]ourts give meaning Morales, must effect to the clear I, F.Supp. at Starr 986 written."); of statutes as United States (9th Cir.1997) (“If Judge Judges 108 F.3d 14. Chief Reasoner and Howard meaning perfectly plain Wright. of the rule is from its and court; the district proceedings before (1) represented “a complaint Mandanici’s (3) allega- reviewing Mandanici’s after Indepen- and to discredit personal crusade tions, there was no (2) the DOJ determined Counsel”; specific no evi- there was dent office.15 Id. at 1161. for action in the course of basis misconduct Starr dence of Attorney General's is the speaking the issue use opinion, for him- 15. The author of 596(a)(1)." weight 28 U.S.C. power that the only, with the removal under takes issue self Shaheen, (Letter the DOJ's Jr. to to both letter from Michael court accorded Id. at 261 8, 1997). political Judge alleged Aug. an- Judge Eisele and Mandanici's Eisele of underlying complaints, that, filing employed in imus the DOJ contended because specific removal, evidence assumption purposes district court's "very high threshold" V(A), required under Rule and of misconduct is applicability analysis limited DOJ's is analyze the sub- court's the district failure impose majority's whether to determination Judge allegations. Eisele Mandanici’s stance of sanctions, majority particularly where the lesser opinion insightful these issues in addressed concurring (and supporting address the did not dissenting part part in evidence) apparent regarding conflict of Starr's opinion. majority The author court’s the district II, F.Supp. at 1167. Starr interest. analy- Judge Eisele’s opinion agrees with concurrence, Contrary Judge Loken’s nei sis. Judge Eisele nor the author asserts ther allega argued that Mandanici's Eisele apparent to "an Pepperdine-Scaife amounts issue tions, true, that Starr suffered demonstrate (con Infra, political at 752 conflict of interest." appearance conflict under at least an (emphasis original). curring deed, judgment) In issue, thereby Pepperdine-Scaife respect to the alleged clearly stated: "The Eisele duty refer triggering court’s the district Pepperdine-Scaife that I have identified conflict V(A). investigation under Rule See matter nothing to do with Mr. Starr’s has whatsoever J., II, (Eisele, F.Supp. at Rather, per puts political it Mr. Starr's views. (“It my opinion dissenting) that the Court has sonal, financial, possible career interests in authority institu only legal but also the independent duty counsel to with his conflict duty inquire Pepperdine-Scaife into the tional power prosecutorial exercise his discretion that, issue.”). Specifically, Judge Eisele noted II, even-handedly.” fairly Stan refusing to address the substance Mandanici’s Likewise, J., (Eisele, dissenting). true, incorrectly majority allegations, assumed that that, opines Pepperdine-Scaife the author required was specific evidence misconduct appearance allegations of a create the appearance Id. at 1166— of conflict. establish an defined in 28 C.F.R. of interest as conflict majority wrote: 67. The (1998) 45.2(b)(2) (defining "personal § relation [Tjhis Starr has ever [] court is unaware that ship” "a close substantial connection as improper manner or unethical acted in an normally likely type as to induce viewed the presid- Court has matters over the ed, Moreover, nothing in partiality"). there is the specific evidence and in the absence of language Independent express of the part the misconduct Act, (provid § 28 U.S.C. 528 28 U.S.C. or Court, proceedings Counsel in before disqualification of ing the officers em for considering [] behind Man- the motivations ployees DOJ the event of an actual or of the op- allegations, the danici’s this Court declines financial, political personal, apparent or conflict provide a forum portunity [ ] Mandanici for interest), prohibit the district court that would pursuit of his “vendetta.” enforcing contained in the ethical standards from specif- it is axiomatic Id. at 1162. against prosecutors, federal includ its local rules required not of actual ic evidence misconduct counsel, qua ing independent members of the appearance an there- to demonstrate that there is (Response by the See also J.A. at 189 Attor bar. ney of. 7) ("[W]e to Motion to Dismiss General majority's challenged Judge em- Eisele also Congress any evidence that not aware are against phasis "vendetta” on Mandanici’s Act, any Government meant in the Ethics in that these concerns should have been and asserts statute, [the district other interfere objective analysis put of the aside in favor of an supervise power ... court’s] traditional allegations. See id. at merits of Mandanici's rep attorneys, including those conduct of ethical resenting majori- Finally, Judge criticized the Eisele States, appearing before the United investigation ty's upon DOJ's as reliance it.”); v. United States District Whitehouse strong support Mandani- its conclusion that cf. (1st Cir.1995) Court, (recog 53 F.3d 1357 referral. See id. do not warrant ci's authority prose- regulate nizing district court’s majority acknowledged, expressly DOJ As the Klubock, conduct); v. United States 832 cutorial position whether it takes on stated that "no Cir.1987) banc) (1st (en (upholding F.2d 664 discretionary authority exercise its Court should regulating prosecu- constitutionality rule of local allegations] or to take review [the to any Mandanici Johnston, conduct); States v. 690 so,” torial United (Response by J.A. at 198 action if it does Cir.1982) (7th attorney-wit (applying 16), 638 F.2d Attorney to Dismiss at General to Motion prosecutors); to federal United Pep- ness conflicts rule investigate not to and that its decision (8th Splain, 1135 Cir. high v. F.2d States perdine-Scaife allegation was based on “the 1976) unprofessional (noting prosecutor’s triggering an where threshold for By separate appellate orders dated October has special obligation to Judge Judge Wright Chief Reasoner and de- ‘satisfy only jurisdiction, itself not of its own seeking nied motions Mandanici their re- but also that of the lower courts in a cause in light alleged cusal of an “appearance of review,’ under though even parties are impartiality” part arising it.”) Wil- prepared to (quoting concede Mitchell v. son’s judges comment that “the of Maurer, district 237, 244, the eastern District who were foes of the (1934)). L.Ed. 338 during days Clintons their Arkansas are not There is long-standing precedent in this II, recusing....” F.Supp. See Starr circuit that grievances informants of ethics lack standing action, to commence a formal appeals portion Mandanici from the and thus have no standing bring appeal 2, 1997, district court order dated October in such matters. This court visited the is addition, dismissing Mandanici II.16 In Man- standing jurisdiction sues of in a case appeals separate danici from the orders of analogous to the one at bar thirty years over Judge Wright Chief Reasoner and de- (8th ago in Meyer, Mattice v. 353 F.2d 316 clining to themselves. recuse Cir.1965) (Mattice), pri where we held that vate only citizens not lack standing at law to Discussion maintain a disciplinary proceeding as a for above, primary As stated issue on court, mal action but also appeal standing. is whether Mandanici has appeal.18 lack on Id. at 319. If standing, does not have Mandanici then Mattice, private citizen, joined jurisdiction this court does not have to decide plaintiffs, complaint filed a to have the any appeal. other issues raised on Steel Co. Attorney General Nebraska disbarred on —Env’t, U.S.-, v. Citizens a Better alleged account of an ethical violation. -, 1003, 1012, 140 L.Ed.2d 210 dismissing from the district (“ (1998) jurisdiction Without the court can act, court’s adopted refusal to this court ”) proceed at all in (rejecting cause.’ analysis Stern, Third in Ginsburg Circuit’s “hypothetical jurisdiction”) doctrine of (quot (W.D.Pa.1954), aff'd, (7 McCardle, Wall.) ing parte Ex 74 U.S (3d Cir.1955) F.2d 245 (Ginsburg): (1868)). However, 19 L.Ed. 264 before examining jurisdiction, this court’s petition, just we are Plaintiffs other com- obligated to jurisdiction plaint misconduct, determine whether professional merely proper court, was in the especially supplied district information the court’s consid- it readily apparent because is not nor was it eration. It is ridiculous to assert that the conclusively by determined the district court has no alternative but to take action See, e.g., Williamsport against court.17 Bender v. person complained the of. If the Dist., 534, 541, Area Sch. 475 U.S. court that no considers offense has been (1986) committed; (“[Ejvery 89 L.Ed.2d 501 allegations federal or that the of the II, may subject disciplinary conduct him or her to F.Supp. See Starr at 1161-62. Mandanici sanctions). however, important, More is the dis- does not the district court’s dismissal of engage trict court’s failure to in allegations the manner of the set forth in Mandanici III. forth, analysis infra, that Loken sets 752-53, to appearance determine whether the purposes 17. The district court wrote: "For otherwise) (personal a or conflict exists under addressing allegations, [] Mandanici's the Court above, federal conflict-of-interest laws. As noted jurisdiction will assume it has over that ethics it is this abandonment the court of its involving claims Counsel and analyze obligation to the merits of Mandanici’s standing that [ ] has under our Mandanici Model V(A) pursuant allegations to Rule with which the II, pursue Rules to his claim." Starr author finds fault. (footnote omitted). F.Supp. at 1160 19, 1997, 16.On June a Mandanici filed third grievance alleging light additional ethical underlying violations of the serious nature of the Mattice, concerning grand juiy prejudi- leaks and in this court went further to (hereinafter press any cial comments to the support "Man- determine whether had factual III”). Meyer, danici grievance The district court and 316, dismissed found See Mattice v. none. 353 F.2d (8th Cir.1965). in its order dated October Thus, immaterial, could insufficient, a ease. Mandanici im- commence complaint are scandalous; the district court bring grievance or that the com- his before pertinent or improper only. filed from an Absent an action plaint has been as an informant motive; court, appeal. other reason decides or for he cannot Accord- the district matter, the com- proceed juris- not to with court’s ingly, is no basis for this there recourse. plainant has no appeal. diction on Mattice, Ginsburg, (quoting at 319 353 F.2d Indeed, acknowledged dur 603). Mandanici We further observed that, appeal, argument on the stand ing oral ethics ing is the death knell issue informer, acting as an may, individual [a]n finding by this eourt-that grievance, save one perti- to the district

make available every other citizen of United he and upon qualifi- bearing nent information pursue underly standing have States of a mem- professional conduct cations or the “vital interest” ing grievance because of Beyond point bar. ber of the federal “uniqueness” of this may control that derives from the not exercise the individual proceedings court. Fur- that form its backd proceedings of the case and the over the however, action, responsi- any, rop.21 Implicit argument, becomes in this ther bility court. concession that Mandaniei’s is the additional pursuing greater case is no interest contends, Thus, Mattice as the OIC Id.19 citizen’s. Mandanici nonethe than role be- clearly establishes that Mandanici’s is so presses his claim that this case less filing of his ethics gins and ends with standing vital that unique and interest so important, Mandanici grievance. More every automatically upon citizen. conferred pro- standing at to maintain the “lacked law action; pen- ceeding as a formal absent that, action,” although has no stand-

dency of an Mandanici We conclude appeal. propriety Id. ing Whitewater undoubtedly import, of national thereof are attempts distinguish Mattice Mandanici principles prudential the constitutional by arguing that Rule and 28 U.S.C. reject standing compel us to the kind of jurisdic- contends confer which he Mandanici seeks to es standing citizen tion, adopted after Mattice was well satisfy Article Ill’s tablish. order language of plain decided. have standing requirements, Mandanici must provisions they, along these shows (2) (1) injury fairly in fact that is suffered an of Profession- Rule of the Arkansas Rules 8.3 (3) challenged conduct and traceable to the Conduct,20 than nothing confer more al proposed likely to redressed reme complain or inform the court of standing to See, misconduct; dy. e.g., Steel Co. Citizens provisions, of these alleged none —Env’t, at -, scope, standing to Better by their terms or confers party complainant "as a reasoning has no in Mattice has been 19.This court's variety approval appeal). cited with of actions otherwise” sought suspension or which an individual has against attorney. disciplinary action other requires lawyer having "[a] 20. Rule 8.3 that Attorney Ramos Colon v. United States See lawyer knowledge a that another has committed 6, P.R., 1, (1st Cir.1978) ("A 9 Dist. 576 F.2d of ques- ... that raises a ... violation of the rules challenge private party deci cannot court’s lawyer’s honesty .. . inform the tion as to that discipline.... It remains for the not to sion authority.” professional appropriate Ark. R. chooses.”); authority, court to vindicate its if it so Prof. Cond. 8.3. 126,-127 (2d Application Phillips, 510 F.2d of Cir.1975) curiam) ("[A] private person (per or a support argument for his in 21. Mandanici finds lawyer standing participate a in disci has no Pepperdine that "the Eisele's statement Echeles, plinary proceeding.”); 430 see also In re type allegations suggest conflict that is not 347, Cir.1970) (7th (holding F.2d 350 that United particular a concern not waivable in standing a the result of States had no integrity prosecutorial conflicted client but nothing proceeding where in record disbarment every decisionmaking in which inhabitant or indicated that it had an interest in matter I, suit); See Starr 986 land has a vital interest.” underlying party In re Teitel was a baum, added). 1, (7th Cir.1958) (emphasis (holding at 1153 253 2 F.2d

749 omitted). (citations S.Ct. at 1016-17 The breadth of the “[T]he zone of inter injury particularized,” “concrete and must be according provisions ests varies to the of law issue_” — “conjectural” “hypothetical,” or Bennett, at -, U.S. 117 plaintiff personal “must affect the Thus, S.Ct. at 1161. in order for Mandanici way.” Lujan individual v. prudential demonstrate that he satisfies Defenders of 555, 1, Wildlife, 504 U.S. 560 & n. 112 S.Ct. principles standing, provisions of Rule 2130, (1992); 119 L.Ed.2d 351 see also Glad V(A) must right afford a of suit to those who 91,100, Village of Bellwood, stone v. 441 U.S. inform alleged the court of the misconduct (1979) (Glad 1601, 99 S.Ct. 60 L.Ed.2d 66 proscribed by the statute. stone) (“[A] litigant normally must assert an Mandanici has failed to demonstrate that injury peculiar that is to himself [or herself] he prudential meets the constitutional and group or to a distinct of which he is [or she] First, requirements standing. words, he has not part_”). injury other must injury articulated what he has fact suf beyond substantially that “‘shared in fered; instead he asserts that equal “unique all large measure or a class of (and See, Gladstone, thus, ness” of the e.g., standing citizens.’” 441 ease confers U.S. at 100, Seldin, jurisdiction) (quoting 99 S.Ct. 1601 v. absent Warth constitutional basis.22 490, 499, 422 uniqueness U.S. 95 S.Ct. 45 L.Ed.2d of a case or the (1975) (Worth)); Valley Forge Chris vitalness of an alleged interest has never cf. College tian v. Sepa Americans United proved proxy been for the “constitutional State, Inc., ration Church and 454 U.S. and, minima” of III standing Article 464, 482-83, 102 S.Ct. 70 L.Ed.2d 700 event, duty does not absolve this court of its (1982) (“This (Valley Forge) reject court has jurisdiction to determine based on constitu standing predicated right ed claims of on ‘the prudential principles. tional and In our at citizen, possessed by every require tempt duty, to fulfill that we cannot discern the Government according be administered any injury fairly is traceable to the -’”) (internal omitted). quotation to law conduct of Counsel Kenneth distinct and to Mandan- prudential principles The of stand ici litigants part. or a class of of which he is a ing ensure that federal courts are not “called Indeed, allege Mandanici cannot to have suf upon to questions decide social im broad injury any greater fered an that is than that port in cases in which rights no individual might have been suffered vindicated, will be and [that] access to the concerned citizens. Under such circum federal litigants [is] courts limited to those stances, abjured “[t]he federal courts have Gladstone, best suited to assert the claims.” appeals authority to their which would con 99-100, 441 U.S. at Among S.Ct. 1601. judicial process vert into ‘no more than a prudential concerns is the doctrine that vehicle for the vindication of the value inter litigant’s “a grievance arguably must fall ” bystanders.’ Valley ests of concerned protected within the zone of reg interests 473, 102 Forge, (quoting 454 U.S. at S.Ct. 752 statutory provision ulated or constitu SCRAP, 669, 687, United States v. guarantee tional U.S. invoked the suit.” Ben (1973)). Spear, v. nett L.Ed.2d 254 S.Ct. (1997) (Bennett) (cita light foregoing, L.Ed.2d we hold that Mandani- omitted). generally tions injury See Association ci cannot a sufficient in fact establish Processing Org., Camp, satisfy Data Serv. Inc. III require the Article 397 U.S. 25 L.Ed.2d 184 ments. only complaints persons

22. The standing cases Mandanici cites for the and the of those to cases, proposition standing bring complaints. (citing that he has are state forth a such Id. Ark. R. court, ("[A] only disciplinary which not do proceeding not bind this but also do Cond. 8.1 Prof. support theory may by upon complaint Mandanici’s stand- [bar] "citizen be initiated counsel Rather, 8.3). ing." Appellant person entity.”), See Brief for at 25-26. another These professional plaintiff these cases and the treatises and sources do not decide whether a has merely standing compel disciplinary rules that Mandanici cites on this issue in federal court to acknowledge proceedings the vital role that citizens and third or referral for parties play disciplinary proceedings by filing prosecution. 750 Pickett, 993, 842 F.2d 995 In re the Article trict courts.

Assuming, arguendo, that Cir.1988). fulfilled, (8th Although underlying alle- standing were requirements III proceed- jurisdiction disciplinary because gations may give lacks rise this court still satisfy judicially-im activity, judicial we be- ings Mandanici cannot which constitute standing principles. See prudential authority is further posed supervisory lieve that our (hold Worth, 498, 2197 by per- lack of a Mandanici’s circumscribed constitution ing standing “involves both litigation. interest in this sonal jurisdiction limitations on federal-court al Indeed, distinguishable from case is this exercise”) limitations on its prudential Globe, jurisdic- took the First Circuit where Jackson, 346 U.S. (citing Barrows v. All Act to review a tion Writs under (1953)). Nothing 1031, 97 L.Ed. 1586 S.Ct. deny public access district court’s decision V(A) supports the language of Rule jurors in a names and addresses to the concerns individual or collective view that the 920 F.2d at 90. There prior criminal trial. fall within the persons such as Mandanici gath- that the interest of news the court held by protected the rule. of interests zone rights jurors ering privacy and the V(A) short, cause of does not create a Rule for consideration un- appropriate matter informants; rather, Rule action for supervisory powers. Id. at court’s der the court in the exer merely guides the district important, the court noted that 90. More obligation to right and of its inherent cise denying access to this information “affects by disci integrity of the court oversee implicates important gathering” news Moreover, is not plining the bar. Mandanici Starr, rights. common law Id. at involving constitutional and any proceeding party 10(c) OIC, interpreted § 94-96. The court also investigation, or the the Whitewater As district Massachusetts Plan for than the instant case. of the District of other earlier, jurors making is a court determined Mandanici as Random Selection “informer,” supplier of subject judi- information mere available to certain information no court owes discrete whom findings that were not made the dis- cial express obligation. “Congress may grant an However, petitioner in trict court. unlike the persons otherwise right of action to who Globe, right, by statute or Mandanici has no standing prudential would be barred law, implicated by the district common that is 2197; however, rules,” it id. S.Ct. Ru- court’s failure to make a referral under Accordingly, in this context. not done so has leV(A). above, Mandanici cannot As noted ap bring this Mandanici has no any injury peculiar to him or to demonstrate peal. part. For a class of citizens of which he is reasons, this court is reluctant to exer- these explore Finally, obliged to we feel authority supervisory cise over the dis- its appellate jur possible grounds other two trict court in this context. isdiction, of which fails for different each First, it well-established that reasons. is 46(b) Second, Rule of the Federal may supervisory courts of exercise Appellate provides in Rules of Procedure See, authority e.g., lower courts. La over part: it is shown to the pertinent ‘When Co., Buy v. Howes Leather 352 U.S. of its bar has been court that member 259-260, L.Ed.2d guilty unbecoming ... a member of conduct authority typically in the exercised Such court, will be of the the member bar proceedings, of criminal but has been context subject suspension or disbarment adjudi to monitor the extended on occasion 46(b). Independent R.App. P. court.” Fed. quasi-criminal matters. cation of civil and was admitted' to the Co., Counsel Kenneth Starr See, Newspaper e.g., In re Globe thus, May (1st Cir.1990) bar of this court on (Globe); Fur In re F.2d 88 court, attorney (11th is sub Cir.1989); like long, In re 885 F.2d Cir.1985). (8th ject to this rule. should Snyder, These 770 F.2d V(A), similarity to Rule Rule obvious from its notwithstanding, this court has extensions standing upon Mandanici 46 fails to confer supervisory au circumscribed its exercise court) (and thus, upon jurisdiction thority “judicial activities” of the dis- to the (7th same Cir.1992) reasons that Rule fails to do WL 133897 (unpublished table decision) so-neither rule elevates status (embracing Mandanici’s Mattice specifically). A person above that of an informant. who files an grievance ethics concern-

ing particular attorney nothing does more than “supplfy] information for the Conclusion court’s Mattice, (ci- consideration.” 353 F.2d at 319 sum, Mandanici has no pur- standing omitted). tation He does thereby “initi- grievance sue his in the district courts of this ate an action.” Id. If the district court “de- beyond circuit informing those courts of al- proceed cides not matter, with the misconduct, leged no standing appeal. (citation complainant has no recourse.” Id. Accordingly, appeal we dismiss this for lack omitted). Therefore, Mr. Mandanici’s cur- jurisdiction.23 rent effort before this court must be con- strued as an attempt to invoke our Article BEAM, Judge, Circuit with whom jurisdiction III to seek review of an unap- LOKEN, joins, Circuit Judge, concurring in pealable event. part. III “Article of the Constitution limits the I concur in the result by Judge reached ‘judicial power’ of the United States to the ” agree McMillian. I portions those of his ‘controversies,’ resolution of ‘cases’ and opinion holding that Mr. Mandanici has insuf- “[a]s an incident to the elaboration of this ficient Article standing III to file either an requirement, bedrock Supreme [the Court] initial action or seeking imposi- has always required that a litigant have lawyer discipline tion of by the district court ‘standing’ to challenge the sought action by this court and with portions those adjudicated in the Valley lawsuit.” Forge holding that we jurisdiction do not have to Christian College v. Americans United for merits, any, reach the if of Mr. Mandaniei’s Separation State, Inc., Church and allegations. I go would no further. 464, 471, U.S. 102 S.Ct. 70 L.Ed.2d 700 (1982). The federal courts must consider I first note it entirely is not clear from jurisdiction^ their own standing “and per ‘is the record how court treated the haps the important jurisdiction most of [the letter-complaints by filed Mr. Mandanici. If ” al] doctrines.’ Hays, United States v. simply letters were disciplin- treated as 737, 742, 115 S.Ct. 132 L.Ed.2d ary grievances, then the district court had (1995) FW/PBS, Dallas, (quoting Inc. v. power inherent to consider the substantive 215, 230-31, 493 U.S. allegations contained therein. See Mattice v. (1990)) (alteration L.Ed.2d 603 original). (8th Meyer, Cir.1965). 353 F.2d Thus, in appeal, the first and fundamen Otherwise, complaints treated as question tal jurisdiction, is that of both in filed Mr. Mandanici as a party to the and in court the court from which the action, the jurisdiction district court had no record comes. See Steel Co. v. Citizens to consider the merits. —Env’t, U.S. -,-, Better Although it every is fundamental 1003, 1012, 140 L.Ed.2d 210 This authority has inherent to disbar or requirement is a threshold matter discipline attorneys unprofessional con “‘spring[s] from the nature and limits’” of “ duct, that is not the nature of this matter as judicial power federal is ‘inflexible ” presented in this court. See id. As noted exception.’ without (quoting Id. Mans McMillian, thirty for more than years field, Swan, C. L.M.R. & Co. v. 111 U.S. this circuit has maintained that an (1884)) (altera individual 28 L.Ed. 462 S.Ct. such as Mr. Mandanici lacks original). tion in When this question first “institute and maintain” an action ap or an answered, it is clear that Mr. Mandanici peal seeking discipline against or disbarment lacks standing directly to his assert various lawyer. 318; of a Id. at accord In Matter disciplinary complaints, Opinion see Continental Corp., 966 17, and, result, Steel F.2d McMillian as a this court recuse, All substantive issues raised Mandanici on light jurisdictional moot in are of our appeal, including the disposition. denial motions law,”24 the amended counsel independent power to or the jurisdiction the not have does First, Congress added in 1988. any manner whatsoever. statute in them consider independent Arkansas, 594(i), § declares which U.S. U.S.C.

See Whitmore of Department 109 L.Ed.2d from the 154-55, separate counsel (1990). greater sig- Of purposes. these for Justice here, 28 U.S.C. Congress added nificance clearly ab is jurisdiction, Without “ specific “standards 594(j), § which contains at all proceed here, ‘cannot this court sent coun- independent applicable to conduct of power to de is Jurisdiction cause. specific places conflict-of- This statute sel.” law, it ceases fails [or when and clare the outside permissible on restrictions instance], interest only the function first exist the attorney while private employment for announcing of is that remaining to the court ” counsel, the and on independent serving as cause.’ Steel dismissing fact and — independent counsel -, at 1012 that a former Co.; clients at years after McCardle, three for may represent 7 Wall. one parte Ex (quoting (1868)). counsel Accordingly, independent our as his or her duties 19 L.Ed. our statute is to announce not in this Congress action did proper course of terminate. jurisdiction independent dismiss coun- of on an complete place any lack limitations appears that Mr. It case. activities. political this sel’s Independent accused has never Mandaniei LOKEN, with whom Judge, Circuit arguable violation even an of Counsel Starr concurring: BEAM, joins, Judge, Circuit controlling statute. should that we Judge Beam agree I with De- independent counsel are Although juris- for lack of this simply dismiss employees, are di- partment of Justice lacks Mr. Mandaniei because diction so rected, to do extent that “except has concluded Judge MeMillian appeal. of purposes be inconsistent would order. the merits is in of discussion that some written or comply with the chapter, [to] an propose whenever goes on He then Department policies of the other established jury conducting grand counsel is independent of respecting enforcement of Justice must investi- the district proceedings, Thus, 594(f).25 § 28 U.S.C. laws.” criminal independent counsel any charge that the gate independent an question looking political conflict apparent is tainted interest, any political conflicts counsel’s respect, I believe all due With interest. prosecu- other federal governing standards misguid- sufficiently startling proposition relevant, particularly because are tors historically require legally and ed—both —to subject, 28 addressing this statute federal response. part § was enacted U.S.C. authority no federal MeMillian cites Act, statute that Ethics Government fact, contrary it is rule. proposed indepen- appointment first authorized Act Independent Counsel to the the Attor- 528 directs Section dent counsels. other fed- regulations governing statutes ney to: General Independent Initially, the prosecutors. eral which re- regulations promulgate rules and regulating provisions no Act had or officer disqualification quire the of interest. independent counsel conflicts Justice, Department employee of announced Department of Justice attorney ... including a States United subject to fed- independent counsel investiga- particular in a participation as Department laws eral conflict-of-interest participation if such prosecution or tion rebelling what Congress, employees. financial, polit- personal, in a may result assault as “a back-door some viewed "special Gov- are also Nolan, counsel Removing the Ad- 24. Beth Conflicts from the federal employees” purposes of ernment Justice: Interest ministration Conflicts of bribery, graft, and conflicts relating to crimes Ethics in Govern- Independent Counsels under 202(a). There has 18 U.S.C. See interest. Act, 79 Geo. L.J. ment n Independent Counsel allegation that been no statutes. any of those criminal has violated interest, ical conflict appearance of or the interest standards judges. as ig But that thereof. very nores the public different functions these officeholders perform. As the Su response, Attorney promul- General preme explained Court in Marshall v. Jerri gated § (formerly 28 C.F.R. 45.2 28 C.F.R. co, Inc., 238, 248-50, 446 U.S. 45.735-4), § provides part: in relevant (1980): 64 L.Ed.2d 182 (a) paragraph Unless authorized under Prosecutors entirely need not be “neutral (b) section, employee par- no shall and detached.” an adversary system, ticipate in investigation a criminal pros- or they necessarily permitted are to be zeal- ecution if he has a personal political or ous their enforcement of the law.... relationship with: public officials; Prosecutors are also (1) Any person organization or substan- interest_ too must public serve the tially involved in the conduct that is the [Tjraditions prosecutorial discretion do subject investigation prosecution; of the or judicial not immunize from scrutiny cases or in which the enforcement decisions of an (2) Any person organization or which he administrator by improper motivated specific knows a has substantial inter- factors or were contrary otherwise est that directly would be by affected law.... But the strict requirements of investigation outcome of the prosecu- or neutrality cannot be pros- the same for ... tion. ecutors as for judges, duty whose it is to make the final decision impar- and whose (e) purposes For the of this section: tiality serves as guarantee the ultimate (1) a fair meaningful relationship Political proceeding means a close in our official, regime. constitutional identification with an elected a can- (whether successful) didate or not for (Citations omitted.) reasons, For pros these elective, office, public political party, or a ecutor disqualification primarily eases have campaign organization, arising from ser- focused on issues specifically addressed in 28 principal vice as a adviser thereto or a 594(j) § U.S.C. prosecutor, or —whether principal official thereof. private party who a client prosecu of the tor, This is a narrow disqualifying definition of a has a direct or financial interest political By conflict of no stretch the criminal proceeding interest. issue. Cf. imagination Independent Young does United States ex rel. Vuitton et S.A., “political Starr have a relationship” Pep- 805-08, Fils 481 U.S. perdine University publisher or within 95 L.Ed.2d 740 Seaife 528(c)(1). the meaning of nearly And it is As history confirm, even a brief look will preposterous speculate Pepperdine judicial question prosecutor’s reluctance to or “specific even Seaife has a and substantial political background or views is even more interest” that “directly by would be affected” important in type proceeding criminal grand jury Thus, Mr. Starr’s investigations. case, at issue in this proposed by the rule Judge McMillian finds corruption and other high- misconduct support no pertinent in the most federal ranking government officials. Indepen- The regulations. statutes and dent Counsel congressional Act reflects rec- Looking at question broadly, ognition more it is investigation of effective on- not surprising that federal law going does not re requires prosecutors misconduct who disqualify prosecutors strict “enjoy on the basis some independence measure vaguely political defined Olson, conflicts of inter the Executive Branch.” In Re est. proposal (D.C.Cir.1987). McMillian’s seems F.2d impetus The premised on prosecutors aggressive notion investigations usually has come subject should be to the same eonflict-of- political from an opposition.26 officeholder’s sel, Cox, counsel and after before Mr. Archibald had been Solicitor General in usually Starr have oppos- been chosen from the the Johnson Administration. The Honorable J. ing political party. independent Ellis, The first coun- Harvie & Wilkinson The Honorable T.S. Republican gain control position to Therefore, surprising some it is delay, Dewey was “re- party.29 long After a corrup- and successful our most well-known Gov- designated” the Democratic luctantly investigators been fighters have tion ernor,30 ambition, Dewey pushed Driven highly brought to the task who prosecutors a case relentlessly, searched strong personal staff backgrounds partisan investigation,” bring glory to his “that would ambitions. political Mayor La Guardia process incited and in the investigation congressional example, a For however, Ultimately, jealousy. fits of during the Grant Panic scandal the into Gold bootlegger Waxey Gor- Dewey brought down Republican James by was led Administration sharks, Lucky don, and mafia loan various of the United Garfield, President later A. York Luciano, no other New feats which 1920’s, by a being forced In the after States. Republican dared.31 prosecutor had even investigate the Congress special act of him helped fame later Dewey’s prosecutorial scandal, Coolidge President Teapot Dome York, he made of and Governor New become Senator investigators Democratic chose Presidency, for the runs three unsuccessful Pomerene, running for reelec- then Atlee in the narrowly to President Truman losing attorney Rob- tion,27 Owen Republican and election. presidential erts, an Associate Justice later became who example polit- a 1930’s, Yet another well-known early In the Supreme Court. furthered his ically prosecutor who active Tammany Hall machine was City’s York New successfully fighting offi- by political career investigations of by the relentless broken Thompson, “Big Jim” was cial misconduct Seabury, long-time Demo- Judge Samuel Attorney in the County who Republican Tam- the blamed the political activist who cratic by corruption Dem- early investigated campaign 1970’s many for unsuccessful machine politicians and a United Chicago ocratic in 1916.28 of New for York Governor indicting in Judge. Success States Circuit high- investigator was the Another famous Mayor Daley’s convicting members and actively Dewey, who E. ly partisan Thomas gov- propel Thompson to the helped machine prosecu- a New York appointment as sought political promi- national mansion and ernor’s activity in criminal investigate mob tor to nence. outset, Dewey and his the “[F]rom 1935. past investigators of the step- Just as successful post as prosecutor’s allies saw activists, govern- usually political were and the White governorship to the ping-stone invariably ment officials under suspected that House,” widely and it was their with efforts Attorney sought to undermine mentor, Dewey’s United States tainted investigations were charges that the Medalie, Dewey promoted for George politics. (1973). active remained in Pomerene Independent Is It Broken Process: The Fixed?, candidate for Pres- as a Wash. & Lee He Democratic It Be withdrew Should and How (1997). E. and was Republican Arthur favor of Alfred Smith in 1928 in ident Rev. by chair the investigated appointed Carter’s Hoover Christy Staff, Chief President President later & Corporation Constance O’Keefe in 1932. Jordan. Hamilton Finance Reconstruction Safirstein, Angels, Separation Peter Fallen Powers, Night Saturday An Massacre: and the Seabury fighter Franklin Corruption was a 28. Constitutional, Practical, and Examination presidential Democratic rival for the Roosevelt Special Provi- Prosecutor Tensions Political Mayor Fiorello in 1932. He became nomination Act, 49 Brook. the Ethics in Government sions of another trusted advisor made La Guardia’s (1982). Ad- The 124 n. 51 Clinton L.Rev. in 1934. Herbert run for Governor unsuccessful appointed Republican Fiske Robert ministration Tiger 335 Man Who Rode the Mitgang, The Ger- investigate death Vincent Foster. (1963). Howard, Special Lynch Philip Prose- & ard E. K. Post, Point?, May Washington cutors: What's 28, Crime, Organized Stolherg, Fighting Mary M. 29. at C7. (1995). "prominence believed that was Pomerene’s 27.It Attorney People, 60 Hughes, Rupert 30. help would him” [case] as co-counsel election, ironically he was defeated but Harding friend defender. Administration 107-08, Starr, Stolberg, supra note Teapot n. 1 Dome 211 & John M.R. Werner by partisan politics. Teapot The Dome scan- Nixon was seeking revenge from Illinois partisan dal was shrouded debate. Demo- Democrats because he carry failed to crats initiated the call for investigation State in plethora I960.38 A interviews, congressional articles, hearings Repub- used to attack painted Thompson books as a licans, example, by staging politically debates opportunist, motivated and similar empty Republican chairs demanding to know were leveled County Cook more Conversely, crisis.32 Clerk investiga- Edward Barrett after his conviction.39 tors Roberts and Pomerene endured numer- History’s message is investigating clear — attempts by Republican ous administra- misconduct those in high bruising office is sabotage tion to the investigations. At the political work. That message is confirmed Departments of Navy, Justice and the books by our more experience recent under the unavailable, requests for information Targets Counsel Act. from both ignored, key witnesses could not recall infor- political parties invariably have decided that mation, on and occasion sensitive materials way best political “to blunt the damage had to be taken force.33 Pomerene and posed by investigation an is to attack as ultimately convictions, Roberts won but the [independent counsel], biased the or the accused maintained were victims of judges appointed him.”40 maneuvering by shrewd Democrats who had question, then, The judicia- is whether the jail.34 railroaded them into ry should interfere in process in the Judge Seabury Samuel also found en- suggested by manner Judge McMillian and political power trenched rarely gives ground Eisele, judicial mounting investiga- fight. without a Tammany When Hall’s ini- independent tions of counsel whenever a citi- tial roadblocks Seabury caused intensify zen apparent identifies political an conflict of his investigations, power those in —-from view, In my interest. the answer is a re- Mayor Jimmy Walker down to the lowest sounding no. America has benefitted from a City responded by blocking Seabury’s clerk — long tradition investigators of prosecu- and staff, cutting budget, his forcing him tors zealously who have uproot worked get court orders to obtain records.35 deeply entrenched official misconduct. Some Seabury’s investigations were assailed of the most successful were activists with Republicans alike, Democrats and whenever well-publicized political ambition. Most were it political suited own their A agendas. com- derided for harboring partisan viewpoints Tammany mon Hall tactic attempt towas personal charges ambition. Such are to Seabury’s turn political into a expected political when the stakes are Similarly, battle.36 attorneys opposing pros- high. political The very reason activists are ecutor Dewey Thomas found it useful during prosecutors effective is because their “im- of closing arguments jurors to tell Dewey pure” political Conversely, motives. really was running for Governor of New corruption worst political occurs when one York.37 prosecuted And when Jim Thompson party dominant, precisely because a Kerner, Judge Otto a former Illinois Gover- healthy political opposition will in- stimulate confidante, nor Mayor Daley and, Kerner vestigation needed, If reform.41 claimed he political was victim of a judges witch “investigate undertake to the investi- hunt, while others claimed that gators,” using President vague ap- standards such Teapot HankMessick, 32. Noggle, Burl Prosecution, Dome: Oil and Politics in 38. ThePolitics of 1920’s, (1962). (1978); 167-68 Hartley, Big Thompson Robert E. Jim of (1979). Illinois Starr, 27, supra 33. Werner & note at 161-68. Hartley, supra 39. note 59. Starr, 34. supra Werner & note at 280. O’Sullivan, 40. Julie The Mitgang, supra 35. note at 196-97. Statute, (1996). 33 Am.Crim. L.Rev. Mitgang, supra 36. note 259. 224— Benson, George Corruption C.S. Political Stolberg, supra note at 148. America 65 America, Plaintiff- interest,42 UNITED STATES it will political conflict parent Appellee/Cross-Appellant, and weaken judiciary inevitably politicize the out misconduct. to weed efforts legitimate v. accomplish are to Larry WEBB, counsel independent

If Defendant- A. Congress- Appellant/Cross- which successive purposes for supported Appellee. consistently created and es have partisan- Office, general America, Plaintiff- STATES UNITED politi- activity, future ship, past political Appellee/Cross-Appellant, disqualify grounds to cannot be cal ambition v. to launch a dis- counsel or independent GARDEMANN, Defendant- course, I. David investigation. Of tracting judicial Appellant/Cross-Appellee. any prosecu- intervene when judiciary must financial conflict tor has America, Plaintiff- STATES UNITED or other- prosecution, particular in a interest Appellee/Cross-Appellant, defen- rights of a criminal infringes the wise jury investigation. grand target dant or MENTLICK, Jr., Joseph Defendant- A. specific brings no such But Mr. Mandanici Appellant/Cross-Appellee. judiciary simply wants charges. He independent counsel serve shackle America, Plaintiff- UNITED STATES nothing wrong There is goals. political own Appellee/Cross-Appellant, having political a citizen Mandanici v. is, wrong, it would be agenda. But KRAKLIO, Defendant- Kenneth Lee theory practice, for both unsound Appellant/Cross-Appellee. further that a forum to judiciary provide court was wise The district political agenda. America, UNITED STATES complaints. action on his not to take Plaintiff-Appellant,

v. Defendant-Appellee. ZURCHER, K. Allen 97-3026, 97-3023, 97-3024, 97-3021, Nos. 97-3031, 97-3277, 97-3278, 97-3279 America, UNITED STATES and 97-3280. Plaintiff-Appellee, Appeals, Court of United States v. Eighth Circuit. HILDEBRAND, Defendant- E. Scott 12, 1998. Feb. Submitted Appellant. July 1998. Decided America, Plaintiff- UNITED STATES Rehearing Suggestion for Rehearing and Appellee/Cross-Appellant, in No. 97-3023 En Banc Denied Aug. WEBB, Defendant- M. Joan

Appellant/Cross-

Appellee. context, words, per- years. in this argues that I have inaccu- McMillian being political limit- a rately personal interest is characterized his concerns conflict of ceived political Moreover, apparent conflict of possibility ed to Mr. Starr’s interest. conflict of p. is true that note 15. It interest. See ante prosecutor’s may career enhance that success alleged opinion on Starr's Eisele’s focused thereby rewards does financial lead future financial, But "personal, and career interests." alleged conflict— nature of the not alter the basic situation, assertion of Mr. Mandanici's in this political ambitions. prosecutor’s views and nothing than more conflict of interest may fears is that success What Mr. Mandanici perceived thinly Starr’s attack on Mr. veiled i.e., political, Starr’s propel ambitions, prosecu- on political like the attacks financial, advancement. personal, and career prior Thompson Seabuiy, Dewey, tors

Case Details

Case Name: In Re: Independent Counsel Kenneth W. Starr, United States Department of Justice v. Francis T. Mandanici

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Jun 23, 1998

Citation: 152 F.3d 741

Docket Number: 97-3939

Court Abbreviation: 8th Cir.