United States v. Hastings, 681 F.2d 706 (11th Cir. 1982), cert. denied, 459 U.S. 1203 (1983) United States v. Proctor & Gamble Co., 356 U.S. 677 (1958) United States v. Sells Engineering, Inc. 463 U.S. 418 (1983) Other Authorities 1 Annals of Congress 434, reprinted in B. Schwartz, The Bill of Rights: A Documentary History 1027 (1971) ("Documentary History") Berger, F. Impeachment: The Constitutional Problems (1973). House of Representatives Journal, August, 1789, reprinted in Documentary History at 1122-25 House of Representatives Journal, September 1789, reprinted in Documentary History 1160-63 Schwatz, B., The Bill of Rights: A Documentary History (1971) ("Documentary History") CERTIFICATE OF SERVICE I certify that an envelope containing one copy of the foregoing List of Authorities was sent by Federal Express to the following individuals this 10th day of September, 1987: In the UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA In Re: Request for Access To > Misc. No. 87-1 REPLY ON BEHALF OF UNITED STATES DISTRICT JUDGE ALCEE L. HASTINGS TO THE MEMORANDA OF POINTS AND AUTHORITIES SUBMITTED ON BEHALF OF THE COMMITTEE ON THE JUDICIARY OF THE UNITED STATES HOUSE OF REPRESENTATIVES AND ON BEHALF OF THE UNITED STATES DEPARTMENT OF JUSTICE. United States District Judge Alcee L. Hastings has requested leave to file this reply to the Memorandum of Points and Authorities submitted on behalf of the Committee on the Judiciary (the "Committee") of the United States House of Representatives (the "House") and to the Memorandum of Points and Authorities filed on behalf of the United States Department of Justice (the "Department"). Both memoranda misconstrue Judge Hastings's position and thus devote considerable argument to issues that are not in significant dispute. In Judge Hastings's view, neither addresses many of the issues that must be resolved. By this reply, Judge Hastings hopes to clarify his position and to identify some of the more significant issues that he believes must be addressed and resolved in order to aid the court and opposing counsel in preparing for the hearing scheduled for September 15, 1987. 1 INTRODUCTION Judge Hastings does not challenge the right of the Committee to seek or the authority of the courts to order disclosure of grand jury material that is necessary to enable the Committee to exercise the powers and functions assigned to the House or Congress by the Constitution. Indeed, upon a proper request, he would fully support such disclosure as appeared necessary. He does claim, however, that the Committee has not satisfied the threshold conditions necessary to justify any further disclosure of grand jury material at this time. Moreover, he submits that the procedures followed and the disclosure sought by the Committee are inconsistent with established separation of powers principles and the requirements of interbranch comity that must be satisfied when a legislative committee applies to the courts for disclosure of confidential records compiled by a constitutionally mandated grand jury whose functions are crucial to the functions of both the executive and the judicial branches. Judge Hastings submits that the Committee would have to file an application that satisfied three conditions before this court could properly exercise its discretion to determine whether or what additional grand jury material should be disclosed in connection with its impeachment inquiry. Specifically, the Committee's application should demon strate: 1. The House or, at a minimum, the Committee or the Subcommittee to which any disclosure is to be made had itself determined on the basis of the record before it that the impeachment of a federal judge on an articles that realleged charges that were tried to and rejected by a jury is consistent with the principles embodied in the Double Jeopardy and Speedy Trial provisions of the Constitution (U.S. Const., amend. V). 2. Why and what further disclosure of grand jury material is necessary in view of the fact that a committee of five judges has already examined the entire grand jury record, and, after that screening, has itself compiled the record that the Judicial Conference of the United States (the "Conference") certified to enable the House to determine whether consideration of impeachment was warranted. 3. The Committee has adopted a plan that evidences an appropriate respect for the interests of the grand jury and those of the executive and judicial branches, interests that would be undermined by the requested interbranch disclosure, by limiting dissemination of grand jury materials to those representatives and staff who have a need for the information in order to perform their functions properly--e.g., to the members of the Criminal Justice Subcommittee and the special counsel until such time as it reports to the Committee, to the members of the Committee to the extent necessary to enable them to review the SubCommittee's report, and to the other members of the House to the extent necessary to enable it to consider any report the Committee may submit. Alternatively, in Judge Hastings's view, the Committee might be entitled the requested disclosure upon an application that demonstrated that disclosure was necessary to enable it to exercise its legislative functions in considering matters in addition to its impeachment inquiry such as those presented in the Petition that Judge Hastings submitted to Congress in January 1987 and that is now pending before the Committee. [See Exhibit III to Emergency Motion to Stay and |