Unseal Miscellaneous Order 87-1 ("Emerg. Mot."); see also 133 Cong. Rec. H.271 (Jan. 20, 1987) (referring Petition to Committee).] Given the interests implicated, none of these conditions is unreasonable. Each is clearly grounded in principle and precedent. Moreover, an application that satisfied these conditions would also provide Judge Hastings with information that might enable him to determine that the requested disclosures were appropriate and should be supported rather than opposed. The development of these points and a response to the arguments advanced by the Committee and the Department require a further statement of the nature of the action and its factual background. FURTHER STATEMENT OF THE CASE The Nature of The Action This is not an action by Judge Hastings against the Committee asking the courts to interfere in any way with the Committee's exercise of powers or prerogatives assigned to the House by the Constitution (Comm. Mem. at 5). This is an action by the Committee Chairman, as a legislative officer, asking the court to order unprecedented interbranch disclosure of grand jury materials that implicates the interests of the grand jury, the judicial branch, and the executive Supplemental Factual Background In 1981, Grand Jury 81-1 (Mia) returned an indictment that alleged that Judge Hastings conspired with William Border to solicit a bribe to influence the judges decisions in United States v. Romano. At trial, the prosecutors argued to the jury that Judge Hastings was guilty and that he had testified falsely and submitted fabricated evidence in his defense. On February 4, 1983, the jury rejected both claims by returning a verdict of not guilty. In April 1983, a committee of judges (the "Investigating Committee") undertook to re-investigate these charges pursuant to a claimed authority derived from the Judicial Councils Reform and Judicial Conduct and Disability Act of 1980 (The "Act"), Pub. L. No. 96-458, 94 Stat. 2035 (1980), codified at 28 U.S.C. §§ 331, 332, 372 (c), 604 (h) (1982). As part of that investigation, the Investigating Committee sought and this court granted access to all the records of Grand Jury 81-1 (Mia.). In re Petition to Copy and Inspect Grand Jury Materials ("In re Petition"), 576 F. Supp. 1275 (S.D. Fla. 1983), aff'd 735 F.2d 1261 (11th Cir.), cert. denied, 469 U.S. 884 (1984); see also Exhibit I to Emerg. Mot. In August 1986, the Investigating Committee filed its 381-page report and recommendations and a record that consisted of an 4880-page transcript of its proceedings and some 2800 exhibits it had received with the Judicial Council of the Eleventh Circuit (the "Council"). On September 2, 1986, the Council certified its determination that: (a) in an effort to avoid conviction on to the Conference along with the Investigating Committee's report and the record it had assembled. (See Exhibit A appended to this Reply.) In January 1987, Judge Hastings filed with Congress "The Petition of the Honorable Alcee L. Hastings, a United States District Judge, for Redress of Grievances and Other Legislative Relief" (the "Petition") asking, among other things, that the House and Senate review the record compiled in the proceedings under the Act to determine whether the Act should be repealed or amended. (See Exhibit III to Emerg. Mot.) On March 17, 1987, the concurred in the Council's determination and certified to the Speaker of the House that "consideration of impeachment may be warranted." (See Exhibit B to Exhibit A to Comm. Mem.) The Speaker duly referred the matter to the Committee which it turn referred it to its Criminal Justice Subcommittee (the "Subcommittee"). (See Exhibit A to Comm. Conference Mem.). The record compiled by the Investigating Committee was subsequently delivered to the Subcommittee. In so far as counsel can determine, the Committee has not referred the Petition to any of its subcommittees. Emerg. Mot.) (See Exhibit I to ARGUMENT I. THE CHAIRMAN'S LETTER FAILS TO DEMONSTRATE THE KIND OF SPECIFIC NEED FOR ANY GRAND JURY MATERIAL THAT WOULD BE REQUIRED TO ENABLE THIS COURT TO DETERMINE WHETHER OR WHAT INTERBRANCH DISCLOSURE IS APPROPRIATE. A. RESPECT FOR INTERBRANCH COMITY AND THE PRINCI- The Chairman's request initiated proceedings that implicate the interests and functions of all three branches of government and the separate interests of the constitutionally mandated Grand Jury. The Constitution assigns the sole power of impeachment to the House (U.S. Const., art. I, § 2, cl. 5) as well as the power to participate with the Senate in the exercise of the legislative power (id. § 1). There can be no doubt that the House holds substantial investigative powers incident to both those powers. The Constitution also assigned the Grand Jury constitutional functions that make it unique (id., amend. V). It, too, has significant investigative powers that are available to aid the executive branch in executing its duty to assure that the criminal law are faithfully executed (id. art. II, § 2, cl. 5). But beyond this function, the Grand Jury provides a constitutional check upon the executive's exercises of prosecutorial discretion: "No person shall be held answer for a capital, or otherwise infamous crime, unless on a presentment or indict tion, the Grand Jury affects the interests of the courts as well as those of the citizen by determining what criminal cases may be filed. The rule that grand jury proceedings and records must be kept secret antedates the Constitution and was developed to assure that the Grand Jury could effectively serve its dual functions of aiding and checking the exercise of executive power. The courts have long recognized their duty to protect the interests promoted by the rule of secrecy and have severely limited the exceptions to that rule.1 Against that background it is clear that the Chairman's request for disclosure of grand jury records to the legislative branch must be assessed against the separation of powers principles as they have been articulated and applied in cases such as United States v. Nixon, 418 U.S. 683 (1974), Nixon v. Administrator of General Services, 433 U.S. 683, 1. See, e.g., Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211 (1979) (finding request for disclosure for use in private civil antitrust proceedings not properly authorized); Illinois v. Abbott & Associates, Inc., 460 U.S. 557 (1983) (finding request by State attorney generals for access to federal grand jury materials for use in civil antitrust proceedings authorized by Congress not within exception to rule of secrecy); United States v. Baggot, 463 U.S. 467 (1983) (finding request for use in IRS administrative proceedings not within requirement that disclosure be made "preliminarily to or in connection with" judicial proceedings); United States v. Sells Engineering, Inc., 463 U.S. 467 (1987) (finding disclosure to attorneys in Justice Department civil division not permissible under exception to rule of secrecy) (four most recent discussions of rule and its exceptions by the Supreme Court). |