In re Starr, LR-M-97-91.

• Citation: 986 F.Supp. 1159
• Decision Date: 02 October 1997
• Docket Number: No. LR-M-97-91.,LR-M-97-91.
• Parties: In re Independent Counsel Kenneth W. STARR
• Court: U.S. District Court — Eastern District of Arkansas

986 F.Supp. 1159

In re Independent Counsel Kenneth W. STARR

No. LR-M-97-91.

United States District Court, E.D. Arkansas, Western Division.

October 2, 1997.

MEMORANDUM AND ORDER

SUSAN WEBBER WRIGHT, District Judge.

Pending before this Court are second and third letter-complaints from Francis T. Mandanici, a Connecticut lawyer, alleging various improprieties on the part of Independent Counsel Kenneth W. Starr. The second letter-complaint, which is dated March 11, 1997 ("Mandanici II"), is a renewed request by Mr. Mandanici that the district court take disciplinary action against Mr. Starr for alleged violations of ethical rules concerning conflicts of interest involving Mr. Starr's law firm and the Resolution Trust Corporation ("RTC") and Mr. Starr's future position and salary at Pepperdine University. Mr. Starr has filed a motion to dismiss Mandanici II following a request from this Court that he brief the issue of this Court's jurisdiction to proceed in this matter. The third letter-complaint, which is dated June 19, 1997 ("Mandanici III"), concerns Mr. Starr's alleged violations of rules prohibiting grand jury leaks and prejudicial public statements with respect to an article that appeared in the June 1, 1997, edition of the New York Times Magazine. The Court has carefully considered the matter and concludes that both letter-complaints (Mandanici II and Mandanici III) should be and hereby are dismissed.

I.

For purposes of addressing Mr. Mandanici's allegations, the Court will assume that it has jurisdiction over ethics claims involving the Independent Counsel¹ and that Mr. Mandanici has standing under our Model Rules to pursue his claim. The Court notes, however, that a majority of the judges in the Eastern District of Arkansas have concluded that the determination of whether to open an investigation of an attorney based on allegations of misconduct is not a ministerial act mandated by our rules but is a matter of discretion.² In this regard, the Court agrees with Judge G. Thomas Eisele's observations that in making such a determination, "[t]he circumstances of each situation before the Court should guide the enforcement of those rules," Memorandum Opinion and Order of May 30, 1997, at 9-10 (citations omitted), and that if a judge became aware of possible misconduct by an attorney practicing before him or her, the judge would not automatically and immediately refer the possible misconduct to an outside individual or committee but, rather, would proceed informally to assess the situation. Id. at 10-11. The Court has assessed the situation presented by Mr. Mandanici's allegations and will address each complaint in turn.

A.

Mandanici II, as previously noted, is a renewed request by Mr. Mandanici that the district court take disciplinary action against Mr. Starr for alleged violations of ethical rules concerning conflicts of interest involving Mr. Starr's law firm and the RTC and Mr. Starr's future position and salary at Pepperdine University. For the reasons that follow, the Court concludes that Mr. Starr's motion to dismiss Mandanici II should be and hereby is granted.

1.

No one who has objectively considered the matter seriously disputes that Mr. Mandanici is on a personal crusade to discredit the Independent Counsel. As noted by Judge Eisele, "Mr. Mandanici's vendetta against conservative forces and his objections to Mr. Starr's involvement in the Whitewater investigation are many and long standing," and his "animus is obvious." Op. at 2. It is the opinion of this Court that a complainant's obvious bias and animus is a factor—in this case, a strong one—to be considered by a Court in the decision of whether to exercise its discretion in proceeding with a complaint alleging misconduct. While this Court will not hesitate to sanction any attorney or prosecutor, including an Independent Counsel, who engages in specific misconduct before this Court, this Court is unaware that Mr. Starr has ever acted in an improper or unethical manner in the matters over which this Court has presided (of which there have been several). In the absence of specific evidence of misconduct on the part of Mr. Starr in proceedings before this Court, and considering the motivation behind Mr. Mandanici's allegations, this Court declines the opportunity to provide Mr. Mandanici a forum for the pursuit of his "vendetta."

2.

In concluding that Mr. Mandanici's allegations warrant no action, the Court is giving weight to the fact that the Department of Justice ("DOJ") has itself reviewed the precise allegations set forth in Mandanici II and determined that there is no basis for action by that office. True, the Attorney General has informed this Court that the DOJ's control over Independent Counsels is "generally" restricted to exercising the Attorney General's power of removal in appropriate circumstances and that she takes "no position on whether the Court should exercise its discretionary authority to review [the Mandanici allegations] or to take any action if it does so." See Response by the Attorney General to Motion to Dismiss, at 4, 16. See also August 19, 1997, Letter of Michael E. Shaheen, Jr. (noting that the decision not to investigate the Pepperdine-Scaife allegation was based on "the high threshold for triggering an investigation where the issue is the use of the Attorney General's removal power under 28 U.S.C. § 596(a)(1)"). Nevertheless, the fact remains that the Attorney General has reviewed Mr. Mandanici's allegations and determined that the RTC matter does not support the proposition that such a conflict substantially impairs Mr. Starr's current ability to carry out the duties of his office and that there is no evidence with respect to the Pepperdine University matter that would suggest Mr. Starr is unable to put aside his personal political views while carrying out his duties as Independent Counsel. See February 7, 1997, letter of Michael E. Shaheen, Jr. (noting that the RTC matter "does not support the proposition that such a conflict [with Mr. Starr's law firm and the RTC], if in fact it ever actually existed, substantially impairs Judge Starr's current ability to carry out the duties of his office"); February 24, 1997, letter of Michael E. Shaheen, Jr. (noting with respect to allegations regarding Pepperdine University that the DOJ has "not been presented with any evidence that Mr. Starr is unable to put aside his personal political views while carrying out his duties as Independent Counsel"); May 6, 1997, letter of Michael E. Shaheen, Jr. (informing Mr. Mandanici that materials alleging conflicts of interest by Mr. Starr in connection with the RTC and Pepperdine University "did not provide evidence of misconduct that called for any action by the Department of Justice"). These conclusions speak for themselves (regardless of the standard of review under which they were formulated) and, together with the DOJ's determination that Mr. Mandanici's allegations warrant no action by that office, weigh in favor of this Court likewise declining to act on Mr. Mandanici's allegations.

B.

In Mandanici III, Mr. Mandanici requests that this Court commence grievance and contempt proceedings against Mr. Starr on the basis of public statements that were allegedly made by Mr. Starr or members of his staff with respect to two individuals—Susan H. McDougal, who is currently in contempt of Court for refusing to answer questions before the grand jury despite being granted immunity, and First Lady Hillary Rodham Clinton. Essentially, Mr. Mandanici claims that Mr. Starr violated grand jury secrecy rules by commenting on the circumstances surrounding Ms. McDougal's refusal to testify before the grand jury and by commenting on the possible ramifications (including indictment) surrounding the disclosure of notes of Mrs. Clinton's conversations with her lawyers, which at the time of the article in question, was before the Supreme Court of the United States on a petition for writ of certiorari. For the reasons that follow, the Court concludes that Mr. Mandanici's allegations as set forth in Mandanici III warrant no action by this Court.

1.

A review of Mr. Mandanici's allegations and the record of both this Court and the Court of Appeals for the Eighth Circuit demonstrate that he seriously misstates the facts in this matter. Contrary to Mr. Mandanici's assertions, it was Ms. McDougal, not Mr. Starr, who disclosed to the public the questions that were asked of her before the grand jury and the circumstances surrounding her refusal to answer such questions. This disclosure came well before the article in the New York Times Magazine that is the subject of this complaint. Indeed, during the contempt hearing that was held on September 4, 1996, Ms. McDougal specifically requested that she be allowed to publicize the questions that were asked of her by members of Mr. Starr's staff during proceedings before the grand jury. Tr. at 9-11, 22, 27. This Court granted Ms. McDougal's request as she was not an officer of the court and such rules do not apply to her (although the Court did restrict her from using court proceedings to publicize the questions asked of her). Id. Ms. McDougal's situation was made a matter of public record at her request and there accordingly was no violation of the grand jury secrecy rules on the part of Mr. Starr.

Likewise, the matter of Mrs. Clinton's notes of conversations with her attorneys and her invocation of the attorney-client privilege and work product doctrine was first disclosed by the Eighth Circuit Court of Appeals and only then at the request of the White House. See In re Grand Jury Subpoena Duces Tecum, 112 F.3d 910, 914 (8th Cir.), cert. denied sub nom. Office of President v. Office of Independent Counsel, ___ U.S. ___, 117 S.Ct. 2482, 138 L.Ed.2d 991 (1997). Again, this disclosure came well before the article in the New York Times Magazine that is the subject of this complaint. Indeed, the Eighth Circuit...