## 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.T he United States District Court for the Eastern District of Arkansas ha s 1 adopt ed the American Bar Association’s Model Federal Rules of Disciplinar y Enforcement whi ch provide that the district court must apply the code of professional responsi bility adopted by the highest court of the state in which the district court sits, which, in this case, is A

rkansas. See Local Rules for the Eastern & Western Districts of Ark ansas at App.-1, Rule VI(B). The Arkansas Supreme Court has adopted th e American Bar Association’s Model Rules of Professional Conduct as the State o f Ark ansas’s code of professional responsibility. See In re Arkansas Bar Ass’n , 70 2 S.W.2d 326, 393 (Ark. 1985).
For a more detailed discussion of the factual and procedural background of this 2 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 )

. -2- Franc is T. Mandanici, an attorney who resides in Connecticut, appeals pro s e 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 R ules of Disciplinary Enforcement, In 1

re Starr , 986 F. Supp. 1159 (E.D. Ark. 1997) ( Starr II ), and denying his motions fo r recusal. Id. , 98 6 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 th e district c ourt erred or, in the alternative, abused its discretion in refusing to refer hi s gr ievance for investigation and the prosecution of a formal disciplinary proceedin g under Rule V(A). Mandanici also argues that Ch ief Judge Reasoner and Judge Wright abused their discretion in refusing to recuse themselves from the adjudication o f Mandanici’s grievance. For the reasons discussed below, we dismiss this appeal for lack of jurisdiction.

Background 2

This case originated from an “ethics grievan ce” addressed to the District Judges of the United States District Court for the Eastern District of Arkansas in the form ofStarr is a partner in the Washington, D.C., off ice of the Chicago-based law firm 3 Kirkland & Ellis. Rule V(A) provides: 4

When m isconduct or allegations of misconduct, which if substantiated , would warrant discipline on the part of an attorney admitted to practic e be fore this Court shall come to the attention of a Judge of this Court , whe ther by complaint or otherwise, and the applicable procedure is no t oth erwise mandated by these Rules, the Judge shall refer the matter t o counse l for investigation and the prosecution of a formal disciplinar y proceeding or the formation of such other recommendation as may b e appropriate. Mod. Fed. R. Disc. Enf. V(A).

-3- a letter dated September 11, 1996 (hereinafter “Mandanici I”). In that letter , Mandanici complained to the district court that Ind ependent Counsel Kenneth W. Starr violated (and, presumably, continues to violate) ethical rules concerning conflicts o f inter est during the course of what is widely known as the Whitewater investigation

. Specifically, M andanici alleged that Starr’s substantial ties with the Republican Party create a conflict of interest because the Rep ublican 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-d efunct Resolution Trust Corpora tion (RTC) in connection with Whitewater and a lawsuit that the RTC file d against Starr’s law firm. Mandanici alleged that the lawsuit was ultimately settled in 3 secret for $300,000, saving Starr’s firm an estimated $700,000.
In light of these allegations, Mandanici requested that the distric t 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 theSection 596 provides in relevant part: 5

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 no t prohibited by law protecting persons from discrimination on the basis of such a disability), . . . or any other cond ition that substantially impairs the performance of such independent counsel’s duties. 28 U.S.C.A. § 596(a) (West Supp. 1997) (footnote omitted). Counsel with the Office of Professional Responsibility of the DOJ. 6

-4- matter to the Attorney General for review, pursuant to 28 U.S.C. § 596, which confers 5 upon the Attorney General the p ower to remove an independent counsel. See id. The United States Department of Justice (DOJ) responded by letter dat ed February 7, 1997, which stated, in pertinent part, that the DOJ would take no action against Starr because the “mat erials that have been presented . . . do not contain allegations of any conduct by [] Starr that can be viewed as so ‘ext reme’ as to call for the Attorney General’s use of the extraordinary power of removal.” Joint Appendix (J.A.) at 247 (Letter fro m Michael E. Shaheen, Jr. to Chief Judge Reasoner of Feb. 7, 1997). The letter further 6 stated:
With respect to the allega tion of a conflict of interest regarding the RTC, it is true that the materials presented to [the DOJ] on their face indicate that [] S tarr at one time may have suffered from at least a technica l conflict of interest. However, those materials also make clear that n o suc h conflict exists at this point. Consequently, there is no informatio n to support the proposition that such a conflict, if in fact it ever actuall y existed, substantially impairs [] Starr’s current ability to carry out th e duties of his office.

Id.On May 30, 1997, the district co urt filed a slip opinion ordering briefing on the 7 question of Mandanici’s standing. In re Starr , No. LR-M-97-91 (E.D. Ark. May 30, 1997) (slip op.). Judge Moody recused h imself at the outset of the Mandanici II litigation. See 8 Starr I , 986 F. Supp. at

1155. His recusal was conf irmed by the district court’s August 1, 1997 opinion. Id. at 1144, 1155.
See infra n otes 11–12. Chief Judge Reasoner and Judges Howard and Wright 9 dissented from Judge Eisele’s analysis and conclusions. Id. at 1155.
-5- After receiving a copy of the DOJ’s response, Mandanici reasserted his grievance to the district court in a letter dated Ma rch 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 Po licy (SPP) at Pepperdine Univ ersity created a conflict of interest. According to Mandanici, the latter conflic t derived from the SPP’s substantial endowment from Richard Mellon Scaife, whos e criti cisms of President Clinton have been widely publicized. Mandanici alleged tha t Scaife has spent millions of dollars to promote the Whitewater investigati on and to press a media campaign to discredit the President.
On August 1, 1997, the district court filed the first of its published opi nions in this matter. Starr I , 986 F. Supp. 1144 (E.D. Ark. 1997). The opinion set forth the bases

7 for the recusal of Judges Roy, Woods, Wilson, and Moody. The opinion als o 8 contained a lengthy, critical analysis of Mandanici’s allegations, authored by Judg e Eisele, which different majorities of the court joined in part. Id. at 1145–55. Judge 9 Eisele’s analysis was originally printe d 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 th e qu estion of standing, the rules of the court, the court’s authority, and the substantiv e allegations in Mandanic i II. His discussion of the allegations was limited, however, toThe opinion states: “In light of the Justice Departmen t’s response regarding the 10 older RTC allegations, the Court no longer finds any reason to address the RT C allegations.” Id. at 1147. The author of this opinion, speaking for himself only , disagrees with this conclusion.

Th e DOJ analyzed the RTC allegations pursuant to 28 U.S.C. § 596, whic h 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 b e 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, 97 Cong., 2d Sess. 17 (July 14, 1982), reprinted in 198 2 th 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 “apar t from the context of removal,” the DOJ could not properly “address an y allegations that [] S tarr has a conflict of interest. An independent counsel is subject to discipline by the Department of Justice only through the statutory rem oval 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 an d independent of the DOJ f

or purposes of enforcing criminal conflict of interest laws))). The DOJ expressly refrained from suggesting whether Mandanici’s allegation s warranted further review by the district court and informed the court that it “did not gather any additional facts bearing on the issues bef ore [the district] court.” Id. at 253. By contrast , in reviewing allegations of ethical violations of the members of its bar, the di strict court may consider lesser sanctions that are not subject to the sam e exacting standards required of the Attorney General for removal under § 596. Thus, whil e the DOJ’s § 596 analysis may guide the district court in conducting its own , indep endent

assessment of Mandanici’s allegations, that analysis is of limite d applicability and certainly may not supp lant 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 referra l
o f 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 )

-6- the Pepperdine-Scaife issue, and did not address the RTC allegations. 10candidly submits that the main purpose of the district court’s referral was to determine whether th e threshold requirements of Rules V(A) were met; that is, the district court sought to de termine whether the alleged conduct, if substantiated, could be subject to disciplinary action. However, as this court does not ultimately reach the merits o f Mandanici’s allegations, it will refrain from deciding this issue. Judges Eisele, Roy, Woods, and Wilson. Chief Judge Reasoner and Judge s 11 Howa rd and Wright opined that Mandanici lacked standing to submit his ethic s grievance to the court because “Mandanici is an interloper out to manipulate the Court for his political purposes and . . . his efforts constitute a political vend etta.” 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.

-7- As a preliminary matter, the district court determined that standing was not a 11 “real issue.” Id. at 1148. The district court treated Mandanici’s grievance as that of a “witness or o ther third party, even if anonymous, who informed the court of . . . a n 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 , woul d warrant discipline on the part of an attorney admitted to practic e 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 th e 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 no t give rise to an obligation on the part of the district court to refer such complaints forThe district court reasoned that it should “be able to adapt [local rules] t o 12 unf oreseen circumstances,” and that inflexibility in reading Rule V(A) could lead t o “unreasonable, unfair, and unwise results when viewed in ligh t 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 Mandan ici’s allegations for investigation. See id. The author of this opinion, speaking for himself only, agrees with the interpretation of th e dissenting judges. “[T]he words of a rule are intended to communicate a meaning to those to whom they are ad dressed, 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 e d. 1997). The word “shall” has consistently been held to create a n imperat ive 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 stat utory term, “‘shall’ . . . normally creates an obligation impervious to judicia l discr etion”) (citing Anderson v. Yungkau , 329 U.S. 482, 485 (1947)) ; Stanfield v

. Swenson , 381 F.2d 755, 757 (8 Cir. 1967 ) (“When used in the statutes the wor d th ‘shall’ is generally regarded as an imperative or mandatory and therefore one whic h
mu st be given a compulsory meaning.”). Where, as here, the meaning of the rule i s clea r from its language, no further inquiry is required. Estate of Cowart v. Nicklo s Drilling Co. , 505 U.S. 469, 476 (1992) (“[C]ourts must give effec t to the clear meaning of statutes as written.”); United States v. M orales , 108 F.3d 1031, 1036 (9 Cir. 1997) th (“If th e meaning of the rule is perfectly plain from its language, that ends th e inquiry.”)). Rule V(A) thus plainly requires the district court to refer allegations o f misconduct to counsel for investigation and prosecution.

This conclusion is not inconsistent with the rule of this and other courts tha t dist rict courts should be accorded great deference in interpreting their own rules

. Ind eed, other appellate courts have noted that a district court’s inherent power t o discipline attorneys who practice before it does not absolve the court fro m its obligation to f ollow the rules it created to implement its exercise of such power. Matter o f

-8- investigation and prosecution. Id. at 1149. In light of this determination and their 12Thalheim , 853 F.2d 383, 388 (5 Cir. 1988); Matter of Abrams , 521 F.2d 1094, 1104 th (3d Cir. 1975); cf. Congregation o f the Passion v. Touche, Ross & Co. , 854 F.2d 219, 223 (7 Cir. 1988) (noting that, despite considerable discretion given to district courts

th in interpreting their local rules, courts of appeal will reverse a district court’ s constructi on of its own rule whenever the district court has clearly misconstrued th e rule); 12 Federal Practice and Procedure § 3153 (same). Moreove r, the Supreme Court has held that the plain com mand of a statute should be given effect “even if doing that will reverse the longstanding practice under the statute and the ru le.” Lexecon , — U.S.
a t —, 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.”). Judge Wilson notably wrote of their recusal: 13

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 complain t witho ut it having been considered on the merits. In fact, it is hard t o 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. Chief Judge Reasoner and Judges Howard and Wright. 14

-9- respectiv e friendships with the President and Mrs. Clinton, Judges Roy, Woods, an d Wilson recused themselves. Id. at 1156. 13

In a subsequent opinion granting a motion by the OIC to dismiss Mandanici’ s
com plaints, Judge Wright, writing for the majority, determined that Mandanici’ s 14 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 fol lowing factors: (1) Mandanici’s complaint represented “a personal crusade t o disc redit 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) afte r reviewing Mandanici’s allegations, the DOJ determined that there was no basis forThe author of this opinion, speaking for himself only, takes issue with th e 15 weight that the district court accorded to both the DOJ’s letter and Mandanici’s alleged persona l 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 distri ct court’s failure to analyze the substance of Mandanici’s allegations. Judg e Eisele addressed these issues in a n insightful opinion concurring in part and dissenting in part from the district court’s majority opinion. The author of this o pinion agrees with Judge Eisele’s analysis. Judge Eisele argued that Mandani ci’s allegations, if true, demonstrate that Starr suffered under at least an appea rance of conflict with respect to the Pepperdine-Scaife iss ue, thereby triggering the district court’s duty to refer the matter for investigatio n under Rule V(A)

. See Star r 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 institutiona l duty to inquire into the Pepperdine-Scaife issue.”). Specifically, Judge Eisele note d that, in refusing to address the substance of Mandanici’s allegations, the majorit y incorrectly assumed that specific evidence of misconduct was required to establish an appearance of conflict. Id. at 1166–67. The majority wrote:
[T]his cour t is unaware that [] Starr has ever acted in an improper o r unethical manner in the matters over which this Court has presided, and in t he absence of specific evidence of misconduct on the part of th e Indep endent

Counsel in proceedings before this Court, and considerin g the motivations behind [] Mandanici’s allegations, this Court declines the opp ortunity to provide [] Mandanici a forum for the pursuit of hi s “vendetta.”

Id. at 1162. However, it is axiomatic that specific evi dence of actual misconduct is not required to demonstrate that there is an appearance thereof. Judge Eisele also challenged the majority’s emphasis on Mand anici’s “vendetta” against Starr and asser

ts 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 E isele criticized the majority’s reliance upon the DOJ’s investigation as strong support for its conclusion that Mandani ci’s allegations do not warrant referral. See id.

-10- action by that office. Id. at 1161. 15As the majority acknowled ged, the DOJ expressly stated that it takes “no position on

whether the Court should exercise i ts discretionary authority to review [the Mandanici allegations] or to take any action if it does so,” J.A. at 198 (Response by the Attorney Genera l to Motion to Dismiss at 16), and that its decision not to investigate th e Pep perdine-Scaife allegation was based on “the high threshold for triggering a n investigation where the issue is the use of the Attorne y 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 “ver y high threshold” for purposes of removal, the DOJ’s analysis is of limited applicability to the majority’s determi nation whether to impose lesser sanctions, particularly where the majority did not address the allegations (and support ing 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 autho r asser ts 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 con flict that I have identified has nothing what soever 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., diss enting). Likewise, the author opines that, if true, the Pepperdine-Scaife allegations create the appearance of a personal conflict of i nterest as defined in 28 C.F.R. § 45.2(b)(2) (1998) (defining “persona l relat ionship” as “a close and substantial connection of the type normally viewed a s 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 th e disqual ification of officers and employees of the DOJ in the event of an actual o r appare nt personal, financial, or political conflict of interest), that would prohibit th e district c ourt from enforcing the ethical standards contained in its local rules agains t federal prosecutors, includi ng 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 Governmen t Act, or any other statute, to interfere with [the district court’s] traditional power . . . to supervise the et hical conduct of attorneys, including those representing the United States , appearing before it.”); cf. Whitehouse v. United States District Court , 53 F.3d 1349, 1357 (1 Cir. 1995) (recognizing district court’s authority to regulate prosecutoria l

s t

-11-conduct); United States v. Klubo ck , 832 F.2d 664 (1 Cir. 1987) (en banc) (upholding st constitu tionality of local rule regulating prosecutorial conduct); United States v

. Johnston , 690 F.2d 638 (7 Cir. 1982) (applying attorney-witness conflicts rule t o th feder al prosecutors); United States v. Splain , 545 F.2d 1131, 1135 (8 Cir. 1976 ) th (noting that prosecutor’s unprofessional conduct m ay subject him or her to disciplinary sanctions). More important, however, is the district court’s failure to engage in th e 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

intere st laws. As noted above, it is this abandonment by the district court of it s obligation to analyze the merits of Mandanici’ s allegations pursuant to Rule V(A) with which the author finds fault. On June 19, 1997, Mandanici filed a third grievance alleging additional ethical 16 violations b y Starr concerning grand jury leaks and prejudicial comments to the press (hereinafter “M andanici 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 no t appeal the district court’s dismissal of the allegations set forth in Mandanici III.

-12- By separate orders dated October 2, 1997, Chief Judge Reasoner and Judge Wright denied m otions by Mandanici seeking their recusal in light of an alleged “appearance o f impartiality” arising in part from Judge Wilson’s comment that “the district judges of th e eastern District w ho 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. In addition, Mandanici appeals from the s eparate orders of Chief 16 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 toThe district court wrote: “For purposes of addressing [] Mandanici’ s 17 allegations, the Court will assume that it has jurisdiction over ethics claims involving the Independent Counsel and that [] Mandan ici has standing under our Model Rules to pursue his claim.” Starr II , 986 F. Supp. at 1160 (footnote omitted). In light of the serious nature of the underlying allegations in Mattice , this court 18 went further to determine whether they had any factual support and found none. See Mattice v. Meyer , 353 F.2d 316, 319 (8 Cir. 1965). th

-13- 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 jurisdicti on the court cannot proceed at all in any cause.’”) (rejecting doctrine of “hypothetical jurisdiction”) (quoting Ex part e McCa rdle , 74 U.S (7 Wall.) 506, 514 (1868)). However, before examining this court’ s jurisd iction, we are obligated to determine whether jurisdiction was proper in the distric t court, especially because it is not readily apparent nor was it deter mined conclusively by the district court. See, e.g. , Bender v. Williamsport Area Sch. Dist. , 475 U .S. 534, 541 (1986)

17 (“[E]very federal appellate court has a special obligation to ‘satis fy itself not only of its own jurisdiction, but also that of the lower courts in a cause under review,’ even though th e parties a re prepared to concede it.”) (quoting Mitchell v. Maurer , 293 U.S. 237, 24 4 (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 cas e analogous to the one at bar over thirty years ago in Matti ce v. Meyer , 353 F.2d 316 (8 Cir. th 1965) ( Mattice ), where we held that private citizens not only lack standing at law t o maintain a disciplinary proceeding as a formal action in the district court, but they also lack standing on appeal. Id. at 319. 18

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.This court’s reasoning in Mattice has been cited with approval in a variety of 19 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 (1 Cir. 1978) (“A private party cannot challenge the court’s decision not t o

st discipl ine. . . . It remains for the court to vindicate its authority, if it so chooses.”) ; Action of Phillips , 510 F.2d 126, 127 (2d Cir. 197 5) (per curiam) (“[A] private person
or a lawyer has no standing to participate in a disciplinary proceeding.”); see also In
re Echel es , 430 F.2d 347, 350 (7 Cir. 1970) (holding that United States had n o th st anding to appeal the result of a disbarment proceeding where nothing in recor d ind icated that it had an interest in the matter or was a party to the underlying suit); In re Teitelbaum , 253 F.2d 1, 2 (7 Cir. 1958) (holding that a com plainant has no standing th “as a party or otherwise” to appeal).

-14- In dismissing the appeal from the district court’s refus al to act, this court adopted the Third Circuit’s analysis in Ginsbu rg v. Stern , 125 F. Supp. 596 (W.D. Pa. 1954), aff’d , 225 F.2d 245 (3d Cir. 1955) ( Ginsburg ):

Plainti ff'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 perso n complained of. If the court considers that no offense has been committed; or th at the allegations of the complaint are insufficient, immaterial, impertinen t
or scan dalous; 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 furth er observed that
[a]n individual may, acting as an informer, make available to the district court pertinen t information bearing upon the qualifications or professional conduct of a member of the federal bar. Beyond that point the individual may no t exercise control over the proceedings of the court. Further action, if any , becomes the responsibility of the court.

Id. Thus, as the OIC contends, Mattice clearly establishes that Mandanici’s role 19Rule 8.3 requires that “[a] lawyer having knowledge that another lawyer has 20
com mitted

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. Mandanici finds support for his argument in Judge Eisele’s statement that “the 21 Peppe rdine allegations suggest the type of conflict that is not waivable in that the y conce rn not a particular conflicted client but the integrity of prosecutoria l decisionmaking in which every inhabitant of this land has a vital interest .” See Starr I , 986 F. Supp. at 1153 (emphasis added).

-15- begins and ends with the filing of his ethics grieva nce. More important, Mandanici “lacked standing a t law to maintain the proceeding as a formal action; absent the pendency of a n action,” Mandanici has no standing to appeal. Id.
Mandanici attempts to distinguish Mattice b y arguing that Rule V(A) and 28 U.S.C. § 1291, w hich he contends confer jurisdiction, were adopted well after Mattice wa s decided. However, the plain language of these provisions shows that they, along with Rule 8.3 of the Arkansas R

ules of Professional Conduct, confer nothing more than standing to 20 complain or inform the court of alleged misconduct; none of the se provisions, by their terms or scope, confers standing to commence a case. Thus, M andanici could bring his grievance befor e the district court as an informant only. Absent an action in the district court, h e cannot appeal. Accordingly, there is no basis for this court’s jurisdiction on appeal.

Indeed, Mandanici acknowledged during oral argument that, on appeal, th e standing issue is the death knell of his ethics grievance, save one finding by thi s court–that he and every other citizen of the United States have standing to pursue the underlying grievance be cause of the “vital interest” that derives from the “uniqueness” of this case and the proceedings that form its backdrop. Implicit in this argument, 21-16-

however, is the ad ditional 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 an d the interest so vital that standing is automatically conferred upon every citizen.
We conclude that, although the Whitewater investigation and the propriety t hereof

are undoubtedly of national import, the constitutional and prudential principles o f stan ding compel us to reject the kind of citizen standing that Mandanici seeks t o establish. In or der to satisfy Article III’s standing requirements, Mandanici must have (1) suffered an injury in fact (2) that is fairly traceab le to the challenged conduct and (3) lik ely 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 particular ized,” 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, 10 0 (1979) ( Gladstone ) (“[A] litigant normally must assert an injury that is peculiar t o himself [or herself] or to a distinct group of which he [or she] is a part . . . .”). In other words, the injury must be b eyond 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, 482-8 3 (1982) ( Valley Forge ) (“This court has rejected claims of standing predicated on ‘the right p ossessed by every citizen, to require that the Government be administere d according to law . . . .’”) (internal quotation omitted).

Th e prudential principles of standing ensure that federal courts are not “calle d 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 zoneThe only cases that Mandanici cites for the propos ition that he has standing are 22 state cases, which not only do not bin d this court, but also do not support Mandanici’s theory of “citizen standing.” See Brief for Appellant at 2 5-26. Rather, these cases and the t reatises and professional rules that Mandanici cites on this issue merel y acknowledg e the vital role that citizens and third parties play in disciplinar y proceedings by filing complaints and the standing of those pe rsons 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). Thes e sources do not decide whether a plaintiff has standing in federal court to compe l disciplinary proceedings or referral for investigation and prosecution.

-17- 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. C amp , 397 U.S. 150 (1970). “[T]he breadth of the zone of interests varie s according to t

he 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.

Mand anici has failed to demonstrate that he meets the constitutional an d 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 a

ny constitutional basis. However, the uniqueness of a case 22

or the vitaln ess of an alleged interest has never been proved a proxy for th e “constitutiona

l minima” of Article III standing and, in any event, does not absolve this court of its duty to determine jurisdiction based on constitutional and prudentia l principles. In our attem

pt to fulfill that duty, we cannot discern any injury that is fairly tr aceable to the conduct of Independent Counsel Kenneth Starr and is distinct an d 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-18-

courts have abjured appeals to their authority which would convert the judicial process into ‘no mo re than a vehicle for the vindication of the value interests of concerne d byst anders.’” Valley Forge , 454 U.S. at 473 (quoting United States v. SCRAP , 41 2 U.S. 669, 6 87 (1973)). In light of the foregoing, we hold that Mandanici canno t 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 t he judicially-imposed prudent ial standing principles. See Warth , 422 U.S. at 498 (holding that standin g “i nvolves both constitutional limitations on federal-court jurisdiction and prudentia l 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 i ndividual or collective concerns of persons such as Mand anici 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 gui des the district court in the exercise of its inherent right and obligation t o
oversee the integrity of the court by disciplining the bar. Moreover, Mandanici is not

a par ty 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 discret e 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, w e feel obliged to explore two other possible grounds for appellat e jurisdiction, each of which fails for different reasons. First, it is well-established tha t courts of appeal may exercise supervisory authority over lower courts. See, e.g. , L a Buy v. Howes Leather C o. , 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 monit or the adjudication of civil and quasi-criminal matters. See, e.g. , In re Glob e Newspaper Co. , 920 F.2d 88 (1 Cir. 1990) ( Globe ); In re Furlong , 885 F.2d 815, 819 st-19-

(11 Cir. 1989); In re Snyder , 770 F.2d 743 (8 Cir. 1985). These extension s th th notwithstanding, this court has circumscribed its exerci se of supervisory authority to the “judicial acti vities” of the district courts. In re Pickett , 842 F.2d 993, 995 (8 Cir

. th 1988). Although the underlying allegations may give rise to disciplinary proceeding s which constitute judicial activity, we believe that our supervisory authority is furthe r circumscribed by Mandanici’s lack of a personal interest in this litigation.

Indeed, t his case is distinguishable from Globe , where the First Circuit too k 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 consi deration under the court’s supervisory powers. Id. at 90. More important, t

he 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 i nterpreted § 10(c) of the District of Massachusetts Plan for Random Selection of jurors as making this information available subject to certai n judicial findings that were not made by the district court. Howev er, unlike the petitioner in Globe , Mandanici has no right, by statute or common law, that is implicated by the district court’s fai lure to make a referral under RuleV(A). As noted above, Mandanici cannot de monstrate any injury peculiar to him or to a class of citizens of which he is a part. For these reasons, this co urt is reluctant to exercise its supervisory authority over the district court in this context.

Seco nd, Rule 46(b) of the Federal Rules of Appellate Procedure provides i n 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 co urt.” 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 b e obvious from its similarity to Rule V(A), Rule 46 fails to confer standing uponAll substantive issues raised by Mandanici on appeal , including the denial of 23 his motions to recuse, are moot in light of our jurisdictional disposition.

-20- Mandanici (and thu s, 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 opini on holding that Mr. Mandanici has insufficient Article III standing to fil e either an initial action or an appeal seeking the imposition of lawyer discipline by the district cou rt or by this court and with those portions holding that we do not hav e juris diction 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 distric t court treated the letter- complaints filed by Mr. Mandanici. If the letters were simply treated a s discipl inary grievances, then the district court had inherent power to consider th e 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-21-

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 tha n 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 p erson 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 th e matter, the complainant has no recourse." Id. (citation omitted). Therefore , Mr. Mandanici's current effort before this court must be construed as an attempt t o 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 requir ement, [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. , 45 4 U.S. 464 , 471 (1982). The federal courts must consider their own jurisdiction, "an d standing 'is perhaps the most important o f [the jurisdictional] doctrines.'" United States v. Hays , 515 U.S. 737, 742 (1995) (quoting FW/PBS, Inc. v. Dallas , 49 3 U.S. 215, 230- 31 ( 1990)) (alteration in original). Thus, in this appeal, the first and fundamenta l question is that of jurisdiction, b oth 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 requirem ent is a threshold matter that "'spring[s] from the nature and limits'" of th e fed eral judicial power and is "'inflexible and without exception.'" Id. (quotin g Mansfield, C. & L.M.R. Co. v. Swan , 111 U.S. 379, 382 (1884)) (alt eration in original). When this first question is answered, it is clear that Mr. Mandanici lacks standin g directly to assert his various disciplinary complaints, see Opinion of McMillian at 17, and, as a result, t

his court does not have the jurisdiction or the power to consider themBeth Nolan, Removing Conflicts fro m the Administration of Justice: Conflicts 24 of Interest and Independent Counsels under the Ethics in Government A ct , 79 Geo. L.J. 1, 29 (1990).

-22- in any manner

whatsoever. See Whitmore v. Arkansas , 495 U.S. 149, 154-55 (1990).
Without juri sdiction, 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 o f 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 wi th Judge Beam that we should simply dismiss this appeal for lack o f jurisdi ction because Mr. Mandanici lacks standing to appeal. Judge McMillian ha s concluded that some discussion of the merits is in order. He then goes on to propose that whenever an independent counsel is conducti ng 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 McMi llian cites no federal authority for his proposed rule. In fact, it i s
co ntrary to the Independent Counsel Act and the statutes and regulations governin g other federal prosecutors. Initially, the Independent Counsel Act had no provision s regulating independent counsel conflicts of interest. In 1 987, the Department of Justice announced that independent counse l were subject to federal conflict-of-interest laws as Departme nt employees. Congress, rebelling at what some viewed as “a back-doo r assault on the independent counsel law,” amended the sta tute in 1988. First, Congress 24Independent counsel are also“spe cial Government employees” for purposes of 25 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 Star r has violated any of those criminal statutes.

-23- added 28 U.S.C. § 594(i), which declares independent counsel separate from th e 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 t o indep endent counsel.” This statute places specific conflict-of-interest restrictions o n permi ssible outside employment for a private attorney while serving as independen t counsel, and o n the clients that a former independent counsel may represent for one to th ree 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 a n arguable violation of this controlling statute.
Although independent counsel are not Department of Justice employees, they are directed, “except to the e xtent that to do so would be inconsistent with the purposes of this chapter, [to] comply with the written or other established pol icies of the Department of Justice respecting enforcement of the criminal laws.” 28 U.S.C. § 594(f). Thus, in 25 loo king at the question of an independent counsel’s political conflicts of interest, an y standards governing other federal prosecutors are relevant, particularly because th e federal statute addressing this subject, 28 U.S.C. § 528, was enacted as part of th e Ethic s in Government Act, the statute that first authorized the appointment o f independent counsels. Section 528 directs the Attorney General to:
promulgate rules and regu lations which require the disqualification of any officer or employee of the Department of Justice, includi ng a United States attorney . . . from part

icipation in a particular investigation or prosecution if such participation may result in a persona l, financial, or political conflict-24-

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, n o emplo yee shall participate in a criminal investigation or prosecution if he has a personal or political relationship with: (1) Any person or organization substantially inv olved in the conduct that is the subject of the investigation or prosecution; or
(2) A ny 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 a n elected official, a candidate (whether or not succ essful) 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 disqual ifying political conflict of interest. By no stretch of the imaginati on does Independent Counsel Starr have a “political relationship” with Pepperdine University or pu blisher Scaife within the meaning of § 528(c)(1). And it is nearly a s preposterous to speculate that Pepperdine or even Scaife has a “specific and subst antial interest” that would be “directly affected” by Mr. Starr’s grand jur y investigations. Thus, the rule proposed by Judge McMillian finds no suppo rt in the most pertinent federal statutes and regulations.-25-

Looking at the question more broadly, it is not surprising that federal law doe s not res trict or disqualify prosecutors on the basis of vaguely defined political conflicts of interest. Judge McMillian’s propos al seems premised on the notion that prosecutors should be subject to the s ame conflict-of-interest standards as judges. But that ignores the very differe nt 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 sys tem, they are necessarily permitted to be zealous in their enforcement of the law. . . . Prosecutors are also public officials; they too must serve the publ ic interest. . . . [T]raditions of prosecutorial discretion do no t immunize from judicial scru tiny cases in which the enforcement decisions of an administrator were motivated by improper factors or were otherwise contrary to law. . . . But the strict req uirements of neutrality cannot be the same f or . . . prosecutors as for judges, whose duty it is to make the final deci sion 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 p rivate party who is a client of the prosecutor, has a direct personal or financia l interest in the crim

inal 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 o f cri minal proceeding at issue in this case, the investigation of corruption and othe r misconduct by high-ranking government officials. The Independent Counsel Ac t reflects

co ngressional 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 aggressiveIndependent counsel before and af ter Mr. Starr have usually been chosen from 26 the opposi ng political party. The first independent counsel, Archibald Cox, had been Solicitor Gen eral 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 B e Fixed? , 54 Wash. & Lee Rev. 1515, 1539 (1997). Republican Arthu r Chr isty investigated President Carter’s Chief of Staff, Hamilton Jordan. Constanc e O’K eefe & Peter Safirstein, Fallen Angels, Separation of Powers, and the Saturda y Night Massacre: An Examination of the Practical, Constitutional, and Poli tical Tensions in the Special Prosecutor Provisions of the Ethics in Government Act , 49 Brook. L

. Rev. 113, 124 n. 51 (1982). The Clinton Admi nistration appointed Republican Robert Fiske to investigate the death of Vincent Foster. Gerard E. Lyn ch & Philip K. Howard, Special Prosecutors: What’s the Point? , Washington Post, May 28, 1995, at C7. It was believed that Pomerene’s “prominence as co-counsel i n the [case] would 27 help h im” 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)

. Pome rene remained active in politics. He withdrew as a Democratic candidate fo r President in 1928 in favor of Alfred E. Smith and was later appointed by Presiden t Hoover to chair the Reconstruction Finance Corporation in 1932.

-26- investigations has usually come from an officeholder’s politica l opposition. Therefore,

26 it is not surprising that some of our m ost well-known and successful corruption fighters hav e been investigators and prosecutors who brought to the task highly partisa n 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 Stat es. In the 1920’s, after being forced by a special act of Congress t o inve stigate the Teapot Dome scandal, President Coolidge chose as investigator s Democratic Senator Atlee Pomerene, then running for reelection, and Republica n 27 attorney Owe n Roberts, who later became an Associate Justice of the Supreme Court. In the earl y 1930’s, New York City’s Tammany Hall machine was broken by th e
re lentless investigations of Judge Samuel Seabury, a long-time Democratic politica l activist who blamed the Tammany machine for his un successful campaign for GovernorCorruption f ighter Seabury was a Franklin Roosevelt rival for the Democratic 28 presidential nomination in 1932. He became Mayor Fiorello La Guardia’s truste d advisor and made another unsuccessful run for Governor in 1934. Herbert Mitgang, The Man Who Rode the Tiger 335 (1963). Mary M. Stolberg, Fighting Organized Crime , 65 (1995). 29 Rupert Hughes, Attorney for the People , 60 (1940). 30 Stolberg, supra

note 29, at 99, 107-08, 116. 31

-27- of New York in 1916. 28

Another famous investigator was the highly partisan Thomas E. Dewey, wh o act ively sought appointment as a New York prosecutor to investigate mob crimina l 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 Medali e, promoted Dewey for the position to gain control of the Republican party. After a long delay, Dewey wa s 29 “reluct antly designated” by the Democratic Governor. Driven by ambition, Dewe y 30 pushed his staff relentlessly, searched for a case “that would bring glory to hi s inv estigation,” and in the process incited Mayor La Guardia to fits of jealousy

. Ultimately, however, Dewey brought down bootlegger Waxey Gordon, various mafia loa n sharks, and Lucky Luciano, feats which no other New York prosecutor had even dared. Republican Dewey’s prosecutoria l fame later helped him become Governor of

31 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 politica lly active prosecutor who furthered his political career by successfully fighting official misconduct was “Big Jim ” Thompso n, the Republican County Attorney who in the early 1970's investigate d corruption by Democratic Chicago politicians and a United States Circuit Judge.Burl Noggle, Teapot Dome: Oil and Politics in the 1920's , 167-68 (1962). 32 Werner & Starr, supra

note 27, at 161-68

. 33 Werner & Starr, supra

note 27, at 280. 34 Mitgang, supra

note 28, at 196-97. 35

-28- Success in indicting and co nvicting 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, th e govern ment officials under investigation invariably sought to undermine their effort s with charges that the investigations were tainted by par tisan politics. The Teapot Dome scandal was shrouded in p artisan debate. Democrats initiated the call for investigation and used congressional hearings to attack Repu blicans, for example, by staging debates with e mpty Republican chairs demanding to know more of the crisis. Conversely , 32 in vestigators Roberts and Pomerene endured numerous attempts by the Republica n administr ation to sabotage the investigations. At the Departments of Justice and th e Navy, b ooks were unavailable, requests for information ignored, witnesses could no t recall key information, and on occasion sensitive materials had to be taken by force. 33 Pom erene and Roberts ultimately won convictions, but the accused maintained the y were victims of shrewd maneuvering by Democ rats who had railroaded them into jail. 34

Judge Sam uel Seabury also found that entrenched political power rarely give s gr ound without a fight. When Tammany Hall’s initial roadblocks caused Seabury t o intensify his investigations, those in power -- from Mayor Jimmy Walker down to the lowest C ity clerk -- responded by blocking Seabury’s staff, cutting his budget, an d forcing him to get court orders to obtain records. Judge Seabury’s investigations were 35 assaile d by Democrats and Republicans alike, whenever it suited their own politica l agendas. A common Tammany Hall tactic was to attempt to turn Seabury’sMitgang, supra note 28, at 224-226, 259. 36 Stolberg, supra

note 29, at 148. 37 Hank Messick, The Politics of Prosecution , 102 (19 78); Robert E. Hartley, Big 38 Jim Thompson of Illinois 43 (1979). Hartley, supra

note 38, at 55, 59. 39 Julie O’Sullivan, The Independent Counsel Stat ute , 33 Am. Crim. L. Rev. 463, 40 464 (1996).
-29- investigation into a po litical battle. Similarly, attorneys opposing prosecutor Thomas 36 Dewey found it useful during closing arguments to tell jurors that Dewey was reall y running for Governor of New York. And when Jim Thompson prosecuted Judge Otto 37 Kerner, a former Illinois Governor and Mayor Daley confida nte, Kerner claimed he was the victim of a political witch hunt, while others claimed that President Nixon wa s seeking revenge from Ill inois Democrats because he failed to carry the State in 1960. 38 A plethora of interviews, articles, and books painted Thompson as a politicall y motivated opportunist, and similar allegations were leveled by Cook County Cler k Edward Barrett after his conviction. 39

Hist ory’s message is clear -- investigating misconduct by those in high office is bruising political work. That message is confirmed by our more recent e xperience under the Independent Counsel Act. Targets from both political parties have invariabl y 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 judic iary should interfere in this process in the

manner suggested by Judge McMillian and Judge Eisele, mounting judicia l investigations of independent counsel whenever a c itizen identifies an apparent political conflict of interest. In my view, the answe r is a resounding no. America has benefitted from a long tradition of investigators and prosecutors who have zealously worked toGeorge C.S. Benson, Political Corruption in America 65 (1978). 41 Judge McMillian argues th at I have inaccurately characterized his concerns as 42 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 “pers onal, financial, and career interests.” But in this situation, Mr. Mandanici’s assertion of a persona l conflict of interest is nothin g more than a thinly veiled attack on Mr. Starr’s perceived political ambitions, like the att acks 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 pros ecutor’s career and thereby lead to future financial rewards does not alter th e basi c nature of the alleged conflict -- the prosecutor’s political views and ambitions

. Wha t Mr. Mandanici fears is that success may propel Independent Counsel Starr’ s political, i.e., his personal, financial, and career advancement.

-30- up root deeply entrenched official misconduct. Some of the most successful wer e activists with well-publicized political ambition. Most were derided for harborin g partisan viewp oints and personal ambition. Such charges are to be expected when the political stakes are high. Th e very reason political activists are effective prosecutors is because of their “impure” political motives. Conversely, the worst corruption occurs wh en one political party is dominant, precisely because a healthy political oppositio n will stimulate investigation and, if needed, reform. If judges undertake to “investigate 41 the investigators,” using vague standards such as app arent political conflict of interest, 42 it will inevitably politicize the judiciary and weaken legitimate efforts to weed ou t misconduct.

If in dependent counsel are to accomplish the purposes for which successiv e Congresses ha ve 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 financia l conf lict of interest in a particular prosecution, or otherwise infringes the rights of a criminal defenda

nt or a target of a grand jury investigation. But Mr. Mandanici brings-31-

no such s pecific charges. He simply wants the judiciary to shackle this independen t counsel to serve his own political goals. There is nothin g 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.