A Democratic lawyer's one-man crusade against the Whitewater special prosecutor is beginning to bear fruit.

BY JONATHAN BRODER | in his three years as independent counsel investigating the Whitewater affair, Kenneth Starr has repeatedly been accused of having a political agenda and of blatant conflicts of interest. Among the examples cited are his speech at Pat Robertson's Regent University, refusing to put on hold his $1 million-a-year law practice at the law firm of Kirland & Ellis and his ongoing representation of the right-wing Bradley Foundation, which has given millions of dollars to anti-Clinton groups.

This week, a senior Federal judge in Little Rock, Ark., suggested that Starr himself should be investigated for possible conflict of interest because of his plan to accept the deanship of Pepperdine University's new School of Public Policy once his term as special prosecutor is over. Originally, Starr had announced he was resigning to take up the post but retracted the resignation in the face of furious criticism, notably from right-wing groups. The deanship, noted Judge G. Thomas Eisele in a written opinion, is being substantially funded by Richard Mellon Scaife, a millionaire Pittsburgh newspaper publisher, heir to the Mellon fortune and a chief sponsor of various anti-Clinton activities.

Judge Eisele's opinion, which has not been endorsed by other members of the federal district court, came in response to an ethics complaint brought against Starr by Francis T. Mandanici, a Democratic attorney in the public defender's office in New Haven, Conn. Mandanici has submitted complaints about Starr's alleged conflicts before, but this is the first time that a judge has responded sympathetically. Salon spoke with Mandanici about his one-man crusade.

Why are you crusading against Kenneth Starr?

Maybe it takes the personality of a public defender to go after somebody like this. We're used to fighting the odds all the time. I looked at what he was doing, realized something was wrong here, and saw nobody was doing anything about it. I'm 50 years old, and I guess I never left the '60s. It's just part of my persona. I like to speak out when I think something stinks.

Besides the Pepperdine appointment, what else stinks about Starr, in your view?

A year ago, I filed a conflict-of-interest grievance about a Resolution Trust Corporation suit. When Starr accepted the appointment of independent counsel, his law firm was being sued by the RTC for $1 million for breach of fiduciary duty. As independent counsel, he began investigating some of the same people who were suing his law firm. The firm was able to settle for only $300,000.

What happened to your complaint?

It was referred to the Justice Department, which ruled that, although it appeared that Starr had a conflict of interest concerning the RTC, it didn't meet the high standard that would trigger his removal as independent counsel. I then resubmitted my complaint, arguing that just because there isn't enough to remove him doesn't mean that he can't be reprimanded. And I included the Pepperdine material.

And what stinks about the Pepperdine appointment?

Richard Mellon Scaife's foundation, the Scaife Foundation, gave Pepperdine $1.1 million to help create the university's School of Public Policy, where Starr will be dean. He's given other donations to Pepperdine as well. Moreover, Scaife is a well-known critic of Clinton and has spent a lot of money trying to discredit Clinton in the press. One of his favorite causes is the Western Journalism Foundation, which runs ads saying that Vince Foster's death was not a suicide but a murder.

According to Judge Eisele, this certainly means that there is an appearance of a conflict of interest because Scaife is funding Starr's career opportunity. He also says there is enough to investigate not only the appearance but also whether there is an actual conflict of interest.

What happens next?

Normally, the matter would be referred to an outside counsel to investigate it. But Judge Eisele says he's reluctant to do that unless the other federal judges in Little Rock go along with it. Three of the other judges don't want to go along with it.

Why not?

Their technical reason is that I lack standing. But they're wrong on that, and I submitted a memo to them that says you don't need standing to file a grievance. There are enough cases that clearly say that. If I want to sue somebody for money, I have to have standing. I would have to have been injured or something. But when it comes to filing a grievance, the cases in the law books clearly state you don't need standing.

Why didn't Judge Eisele just refer the matter to an outside counsel?

On one level it's just common courtesy to the other judges. But I also suspect he doesn't want to rock the boat, that he doesn't want to be the only one out there.

Where do you think the other judges stand on the issue?

Well, several have recused themselves because they are friends of the Clintons, and another who is married to Vince Foster's widow also has recused himself. They've done the right thing. They've done what Starr should do. They say they have a conflict and they're disqualifying themselves. That leaves Judge Eisele, who wrote the opinion, and three other judges: Judge Susan Weber Wright and Judge Stephen Reasoner are Republican appointees who have been identified in the Little Rock newspapers as foes of President Clinton. They say I lack standing. And then there's Judge George Howard, a Democratic appointee, who also says I lack standing.

It sounds like a stalemate. Is this effectively over?

No, no, no. There are three things that can happen. One is that the two Republican judges recuse themselves, leaving just two judges, Judge Eisele and Judge Howard. In that scenario, where there's just one other judge holding him up, Judge Eisele will go forward. The second option is that Judges Wright, Reasoner and Howard will read my memo and agree that I don't need standing. And the third option is that we bring Susan McDougal into the picture. She adopts my grievance and says, "Hey, I have standing." I've already written to her lawyer about this.

How does she have standing?

The way these judges are talking about it, she would fit their bill. They're suggesting that to have standing, you have to have been injured by Starr. She can claim that if it hadn't been for Starr's conflict of interest, that if a neutral prosecutor had handled this case, there's a good chance he wouldn't have prosecuted her and therefore she wouldn't be in jail.

For contempt of court for refusing to testify before the Whitewater grand jury. Is someone in jail allowed to file a grievance?

Sure. Anybody can. You can file a grievance. You can do the same thing I'm doing.

And if the conflict of interest grievance against Starr was upheld, would that get Susan McDougal out of jail?

Not necessarily a connection there. If Starr were to be reprimanded for conflict of interest, that doesn't mean the court would reverse her conviction.
Aug. 22, 1997

Jonathan Broder is Salon's Washington correspondent.

Is Starr's fortress crumbling? Join the ongoing discussion of the conflict of interest case in Table Talk.