In Re: Independent Counsel Kenneth W. Starr, United States Department of Justice v. Francis T. Mandanici
Docket: 97-3939
Court: Court of Appeals for the Eighth Circuit; June 23, 1998; Federal Appellate Court
Francis T. Mandanici, an attorney from Connecticut, appeals pro se from the U.S. District Court for the Eastern District of Arkansas, which dismissed his ethics grievance against Independent Counsel Kenneth W. Starr and denied his motions for recusal of the judges involved. Mandanici's grievance, submitted in September 1996, alleged that Starr had conflicts of interest due to his connections with the Republican Party and previous work with the Resolution Trust Corporation (RTC). He requested disciplinary actions against Starr, including disbarment or reprimand. The district judges initially voted to refer the matter to the Attorney General, who ultimately found no basis for action against Starr, stating that the allegations did not warrant the use of removal powers and indicated that any prior conflict of interest did not currently affect Starr's duties. The appeal was dismissed for lack of jurisdiction.
Mandanici submitted a letter to the district court on March 11, 1997, reiterating his grievances, particularly regarding allegations against the RTC and a perceived conflict of interest stemming from Starr's appointment as dean at Pepperdine University, which is funded by Richard Mellon Scaife. Mandanici claimed Scaife's financial support was linked to efforts to discredit President Clinton and promote the Whitewater investigation. On August 1, 1997, the district court issued its first opinion on the matter, addressing the recusal of Judges Roy, Woods, Wilson, and Moody, and included a critical analysis of Mandanici's claims, mainly focusing on the Pepperdine-Scaife issue without addressing the RTC allegations. The court determined that Mandanici lacked standing, viewing him as an anonymous third-party informant, and emphasized he was not a party to any ongoing actions. The court interpreted Rule V(A) as non-mandatory, meaning it was not obligated to refer complaints for investigation. As a result, Judges Roy, Woods, and Wilson recused themselves due to their connections with the Clintons. In a subsequent opinion, Judge Wright concluded that Mandanici's allegations did not warrant further investigation, citing that his claims appeared to be a personal vendetta against the Independent Counsel and lacked substantial evidence. Mandanici later appealed the dismissal of his complaints and the refusal of Chief Judge Reasoner and Judge Wright to recuse themselves based on alleged bias.
The primary issue on appeal is Mandanici's standing, which determines the court's jurisdiction to address other issues raised. Without standing, the court lacks jurisdiction, rejecting the concept of 'hypothetical jurisdiction.' The court must first verify the jurisdiction of the lower district court, especially since it was not definitively established there. Established precedent indicates that informants of ethics grievances lack standing to initiate formal actions and thus cannot appeal. This principle was reinforced in the case of Mattice v. Meyer, where a citizen's complaint against a Nebraska Attorney General was dismissed, highlighting that complaints merely provide information for consideration and do not obligate the court to act. The court pointed out that the complainant cannot control proceedings beyond filing the grievance, and any further action is at the court's discretion. Mandanici's standing is limited to submitting an ethics grievance, and without an active case in the district court, he cannot appeal. He argued that specific rules and statutes confer jurisdiction, but these only allow for the reporting of alleged misconduct and do not grant standing to initiate a case. Consequently, Mandanici has no standing to appeal, as confirmed during oral arguments where he acknowledged that the standing issue undermines his grievance unless a unique finding is made granting standing to all citizens based on a 'vital interest' in the case's context.
Mandanici's claim for standing in this case is rejected on the grounds that his interest is no greater than that of any other citizen. Although he argues that the uniqueness of the case justifies automatic standing for all citizens, the court emphasizes that standing must meet constitutional requirements outlined in Article III, which include having (1) suffered a concrete injury in fact; (2) that is traceable to the challenged conduct; and (3) that can be redressed by the proposed remedy. The court clarifies that injuries must be specific and personal, not shared equally among a large group of citizens. Mandanici fails to demonstrate such a distinct injury linked to Independent Counsel Kenneth Starr's actions, as his claims do not exceed those of any concerned citizen. The court also notes that federal jurisdiction is limited to litigants best suited to assert claims, and that standing cannot be based solely on the perceived importance of the case. Additionally, the court finds that Rule V(A) does not provide a cause of action for informants like Mandanici, as it merely serves to guide district courts in maintaining the integrity of the judicial process. Consequently, Mandanici lacks both constitutional and prudential standing to proceed.
Mandanici is classified by the district court as an 'informer,' lacking a distinct legal standing to pursue an appeal due to the absence of a statutory right of action in this context. Congress has not provided an explicit right of action that would allow Mandanici to bypass prudential standing rules. The court further assessed two potential bases for appellate jurisdiction, both of which were found insufficient.
First, while appellate courts typically have supervisory authority over lower courts, this is limited to their judicial activities. Mandanici's lack of a personal interest in the case distinguishes it from precedent (Globe), where the court found an appropriate interest in news gathering and privacy rights of jurors. In contrast, Mandanici does not have a recognized legal right affected by the district court's actions, failing to show any personal injury.
Second, Rule 46(b) of the Federal Rules of Appellate Procedure, which addresses attorney conduct, does not grant Mandanici standing to pursue disciplinary actions against attorneys, paralleling the limitations of Rule V(A). Consequently, Mandanici lacks the standing to bring his grievances to the district court or to appeal. The appeal is dismissed for lack of jurisdiction.
Concurring opinions from Circuit Judges BEAM and LOKEN agree with the dismissal, affirming that Mandanici lacks Article III standing to initiate actions or appeals regarding lawyer discipline. However, Judge BEAM notes uncertainty over how the district court treated Mandanici’s letter complaints, suggesting that if they were viewed as disciplinary grievances, the court could have evaluated them substantively, but not if treated as complaints from a party.
Every court possesses inherent authority to disbar or discipline attorneys for unprofessional conduct; however, Mr. Mandanici's attempt to seek disciplinary action against an attorney does not hold standing under established precedent in this circuit. For over thirty years, it has been maintained that individuals like Mr. Mandanici can only provide information regarding an attorney's conduct but cannot initiate disciplinary actions or appeals. Consequently, if a district court opts not to pursue a complaint, the complainant has no recourse.
The court's jurisdiction is constrained by Article III of the Constitution, which necessitates that litigants must have standing to challenge actions in court. In this case, Mr. Mandanici lacks the requisite standing to assert his disciplinary complaints, leading to the conclusion that the court lacks jurisdiction to consider them. Without jurisdiction, the court is compelled to dismiss the case.
Judge Loken concurs with the dismissal of the appeal due to lack of jurisdiction and standing. He critiques Judge McMillian's suggestion that district courts must investigate potential political conflicts of interest involving independent counsels, asserting that this view is legally misguided and unsupported by federal authority. Historical context reveals that the Independent Counsel Act does not impose conflict-of-interest regulations on independent counsels, and subsequent amendments clarified their separation from the Department of Justice, establishing specific standards of conduct without restricting their political activities.
Mr. Mandanici has not alleged any plausible violations by Independent Counsel Starr concerning the relevant statute. Independent counsels, while not Department of Justice employees, are expected to adhere to DOJ policies regarding criminal law enforcement unless inconsistent with their own mandate. Standards that apply to federal prosecutors are pertinent when assessing the political conflicts of interest for independent counsels. The federal statute 28 U.S.C. § 528, part of the Ethics in Government Act, mandates the Attorney General to create regulations disqualifying DOJ employees, including U.S. attorneys, from cases where personal, financial, or political conflicts exist. The Attorney General's regulation, 28 C.F.R. § 45.2, specifies that no employee may participate in a criminal investigation if they have a significant political relationship with involved persons or organizations. This definition of political relationship is narrow; thus, Independent Counsel Starr does not have a disqualifying political relationship with Pepperdine University or publisher Scaife, nor do these entities have a significant interest affected by Starr’s investigations. Consequently, Judge McMillian's proposed rule lacks backing from federal statutes and regulations. Additionally, federal law does not impose vague political conflict disqualifications on prosecutors, who serve different public roles than judges. The Supreme Court has noted that prosecutors may be zealous in law enforcement, which necessitates a different standard of neutrality than that required of judges. Prosecutor disqualification cases primarily hinge on direct personal or financial interests as outlined in 28 U.S.C. § 594(j).
Judicial reluctance to scrutinize a prosecutor's political affiliations is particularly significant in cases involving investigations of high-ranking government officials' corruption. The Independent Counsel Act acknowledges the necessity for prosecutors to have a degree of independence from the Executive Branch to effectively investigate misconduct. Historically, many successful corruption investigators have had partisan backgrounds and political aspirations. Notable examples include:
1. James A. Garfield, who led the congressional investigation into the Gold Panic scandal during the Grant Administration.
2. Atlee Pomerene and Owen Roberts, chosen by President Coolidge to investigate the Teapot Dome scandal, despite their partisan backgrounds.
3. Judge Samuel Seabury, a Democratic activist, who investigated and dismantled the Tammany Hall political machine in New York City.
4. Thomas E. Dewey, a Republican prosecutor known for his aggressive investigation of organized crime, which bolstered his political career, including a narrow presidential loss in 1948.
5. Jim Thompson, a Republican County Attorney whose investigations of Democratic politicians in Chicago advanced his political stature.
Throughout these historical examples, investigations were often met with accusations of partisanship. The Teapot Dome scandal, for instance, involved intense partisan conflict, with Democrats leveraging congressional hearings to attack Republicans. Investigators faced numerous attempts by the Republican administration to obstruct their efforts, yet ultimately secured convictions. This history illustrates that entrenched political power typically resists accountability, and successful investigations often provoke claims of partisan bias from those under scrutiny.
Tammany Hall's obstruction of Seabury's investigations prompted retaliatory measures from officials, including budget cuts and the need for court orders to access records. Both Democrats and Republicans attacked Seabury's inquiries when politically convenient, often framing them as political battles. Similar tactics were employed against prosecutor Thomas Dewey, suggesting his motives were rooted in personal political aspirations. In the case of Jim Thompson's prosecution of Judge Otto Kerner, accusations of a political witch hunt arose, highlighting the politicization of high-profile investigations. History illustrates that probing misconduct among powerful figures is politically challenging, often leading targets from both parties to label investigators as biased.
The discussion raises the question of whether the judiciary should intervene in independent counsel investigations based on perceived political conflicts of interest. The author argues against such interference, emphasizing the value of politically motivated investigators in uncovering corruption. It is noted that the most severe corruption occurs under single-party dominance, while a robust opposition fosters necessary inquiry and reform. Judicial investigations into independent counsels based on vague political motives could politicize the judiciary itself and undermine efforts to address misconduct. The author asserts that general claims of partisanship should not disqualify independent counsels, though specific conflicts of interest warrant judicial intervention. Mr. Mandanici's request for judicial scrutiny is viewed as an attempt to manipulate the independent counsel for political gain, lacking substantiated charges of bias.
Citizen Mandanici's political agenda is acknowledged as acceptable; however, it is deemed inappropriate for the judiciary to facilitate the advancement of this agenda. The district court appropriately chose not to act on Mandanici's complaints. The U.S. District Court for the Eastern District of Arkansas follows the American Bar Association's Model Federal Rules of Disciplinary Enforcement, which require adherence to the professional responsibility code established by Arkansas's highest court. This code aligns with the ABA's Model Rules of Professional Conduct, as confirmed by the Arkansas Supreme Court.
In cases of attorney misconduct, the district court judges must refer allegations to counsel for investigation and potential disciplinary action unless other procedures are specified. The excerpt also references the independent counsel's removal process, requiring the Attorney General's action for good cause. On May 30, 1997, the district court issued an opinion regarding Mandanici's standing in the case, with Judge Moody recusing himself from the litigation. Additionally, dissenting opinions from Chief Judge Reasoner and other judges are noted, particularly concerning the Justice Department's analysis of RTC allegations, which concluded there was no basis for removal, emphasizing that minor violations should not lead to punitive actions.
The Attorney General's removal power should be exercised only in extreme cases, as indicated by the Department of Justice (DOJ) regarding independent counsels. The DOJ clarified that it cannot address allegations of conflict of interest outside the removal context, and independent counsels are subject to disciplinary action solely through statutory removal mechanisms. The DOJ also noted that it did not investigate additional facts related to Mandanici's allegations, which limits its applicability in ethical reviews. The district court may impose lesser sanctions on its bar members without the stringent standards required for Attorney General removal. The opinion suggests that the district court improperly focused solely on the Pepperdine-Scaife issue. A separate concern arises over whether the district court's referral of RTC allegations to the Attorney General met the requirements of Rule V(A), which was primarily to assess if the alleged conduct warranted disciplinary action. The court refrained from deciding this matter as it did not reach the merits of Mandanici's claims. Judges expressed that Mandanici lacked standing due to perceived political motivations and lack of personal interest in Starr's investigations. The district court believed flexibility in interpreting Rule V(A) was necessary to avoid unreasonable outcomes, while dissenting judges argued that the rule mandates referral of Mandanici's allegations. The author of the opinion aligns with the dissent, emphasizing that rules should convey clear meaning.
The term "shall" in legal contexts is recognized as creating an imperative obligation that is not subject to judicial discretion. This interpretation is supported by various case law, including Lexecon Inc. v. Milberg Weiss, which emphasizes that the term typically imposes a mandatory requirement. When the language of a rule is clear, as in Rule V(A), it necessitates that district courts refer allegations of misconduct to counsel for investigation and prosecution without further inquiry. Courts are obligated to adhere to the explicit meanings of statutes and rules, reinforcing that district courts, while granted deference in interpreting their own rules, must still comply with the rules they establish. The Supreme Court has asserted that the clear commands of a statute are to be followed, even if it contradicts established practices. Judge Wilson expressed concerns regarding recusal impacting the Mandanici II complaint and potentially granting immunity to the Independent Counsel. Additionally, there is criticism of the district court's reliance on the DOJ's letter and the perceived need for specific evidence of misconduct under Rule V(A), as well as a lack of substantive analysis of Mandanici's allegations, which was addressed by Judge Eisele in a concurring opinion.
Agreement exists with Judge Eisele's analysis regarding Mandanici's allegations, which suggest that Starr may have faced an appearance of conflict concerning the Pepperdine-Scaife issue, thus obligating the district court to investigate under Rule V(A). Eisele criticized the majority’s assumption that concrete evidence of misconduct was necessary to establish an appearance of conflict, arguing that this misinterpretation disregards the established principle that an appearance of conflict can exist without specific evidence of misconduct. He further contended that the majority's focus on Mandanici's alleged "vendetta" against Starr detracted from an objective examination of the allegations' merits. Judge Eisele also challenged the majority's reliance on the Department of Justice's (DOJ) investigation as a rationale for not referring the matter, noting that the DOJ's statement did not preclude the court's discretionary authority to review Mandanici's claims. He emphasized that the DOJ's stringent threshold for initiating investigations does not apply to the court's consideration of lesser sanctions or the allegations themselves. Eisele clarified that the Pepperdine-Scaife allegations pertain to potential personal conflicts for Starr, not political ones, highlighting that these conflicts could interfere with his responsibilities as independent counsel, as defined under federal regulations regarding personal relationships that may induce partiality.
The Independent Counsel Act, specifically 28 U.S.C. § 594 and 28 U.S.C. § 528, does not prevent district courts from enforcing their local ethical standards against federal prosecutors, including independent counsel, as members of the bar. There is no indication that Congress intended to limit the district court's traditional authority to oversee the ethical conduct of attorneys representing the United States. Relevant case law supports the district court's ability to regulate prosecutorial conduct and maintain ethical standards.
The district court failed to appropriately analyze the merits of Mandanici's allegations regarding conflicts of interest, which is the primary issue noted by the author. Mandanici filed a third grievance on June 19, 1997, alleging further ethical violations related to grand jury leaks and prejudicial media comments, which the district court dismissed on October 2, 1997. Mandanici does not appeal this dismissal.
The district court assumed it had jurisdiction over ethics claims involving independent counsel and acknowledged Mandanici's standing under the Model Rules. Following serious allegations in a related case, the court found no factual support for them. Case law indicates that private parties lack standing to challenge a court's decisions on disciplinary actions or to participate in such proceedings. Disciplinary authority remains with the court, which can choose to act as it sees fit.
A lawyer aware of another lawyer's rule violation that questions their honesty must report it to the appropriate professional authority, as outlined in Ark. R. Prof. Cond. 8.3. Mandanici's argument is supported by Judge Eisele's assertion that the Pepperdine allegations reflect a non-waivable conflict affecting the integrity of prosecutorial decision-making, which is of public interest. Mandanici cites state cases for "citizen standing," but these are not binding and do not substantiate his claims regarding standing in federal court for initiating disciplinary actions. Complaints can lead to disciplinary proceedings initiated by bar counsel, as per Ark. R. Prof. Cond. 8.1. All substantive issues raised by Mandanici, including motions to recuse, are deemed moot due to jurisdictional rulings. Additionally, independent counsels, historically selected from opposing political parties, are classified as "special Government employees" under federal bribery and conflict of interest statutes, with no allegations of such violations against Independent Counsel Starr. Historical context is provided regarding the appointments and political implications surrounding independent counsels, emphasizing their roles in various administrations and investigations.
Robert E. Hartley references concerns raised by Judge McMillian regarding the characterization of his views on Mr. Starr's potential political conflict of interest. Judge Eisele's opinion highlighted Starr's alleged personal, financial, and career interests, but Judge McMillian contends that Mr. Mandanici's claims of a personal conflict are essentially a critique of Starr's political ambitions, akin to past criticisms of prosecutors like Seabury, Dewey, and Thompson. The text asserts that the notion of a personal conflict intertwined with political motivations is crucial, as the possibility of a successful prosecution enhancing a prosecutor's career does not change the fundamental nature of the conflict, which is rooted in the prosecutor's political views and ambitions. Mr. Mandanici's concern centers on the fear that Starr's success may further his personal and political advancement.
