the history recited below and the extraordinary nature of the impeachment inquiry now being conducted by the Committee on the Judiciary, Judge Hastings believes that he can now demonstrate that he has a particularized need for disclosure preliminary to a judicial proceeding that fully satisfies the requirements of Rule 6(e) (3) (C) (i) of the Federal Rules of Criminal Procedure as construed by the Supreme Court of the United States and the courts of this circuit.

The Investigat

Judge Hastings also intends to petition this court to order public disclosure of the grand jury material, excepting only such material as the court may determine should remain secret to protect significant interests of person other than Judge Hastings or his accusers in the executive or judicial branches. The need for public disclosure has been dramatically enhanced, irrespective of whether the records are disclosed to the House. ing Committee had access to the grand jury material. The Judicial Council of the Eleventh Circuit reviewed the report and record that that committee compiled and determined that Judge Hastings was guilty of charges that the jury of this court had previously rejected. The Judicial Conference concurred in that determination and certified to the House that consideration of Judge Hastings's impeachment may be warranted. These determinations may appear to the public to have been based upon secret material contained in the records of the Grand Jury 81-1. The Committee's recent request can only confirm that suspicion. The

public's as well as Judge Hastings's interest in full disclosure has been dramatically enhanced.

At the same time, two factors have dramatically reduced the need and the possibility for maintaining secrecy. First, time: Grand Jury 81-1 (MIA) is ancient history. The indictments it returned against Borders and Judge Hastings have been tried. The statutes of limitations bars any further governmental interest in any matters on which no' indictments were returned.

traditional

The

interests justifying secrecy have diminished. In so far as the

Second, the prior and requested disclosure: records of Grand Jury 81-1 are concerned, the traditional cloak of secrecy has become a rather tattered shroud. The records themselves, or material based on those records, have been exposed to more that forty (40) judges and various staff aiding those judges. The material already transmitted to the House has been made available to the 535 Members of Congress and to designated staff. The requested disclosure would result in the entire grand jury record being made available to the 535 Members of Congress and designated staff. Add to this the attorneys in the Justice Department and the United States Attorney's office and the agents of the FBI who may have assisted them, and the number of those who have had access may well exceed 600. In these circumstances further piecemeal disclosures as inevitable as it is unfair. Full public disclosure seems the only way to satisfy the public's legitimate interests and to remove the cloud that hovers over Judge Hastings's reputation.

Counsel includes this preliminary statement here because it bears upon the need for this court to retain effective control over the records of the Grand Jury until these petitions can be fairly presented, briefed, and decided. The need for an immediate stay and a desire to avoid breaching the court's sealing order precluded their preparation and filing with this motion.

STATEMENT OF THE CASE

The court's order is both extraordinary and unprecedented. The court granted the Committee access to "all of the records, minutes, transcripts and exhibits of Grand Jury No. 81-1-GJ (MIA) ... for use in connection with its impeachment inquiry concerning the Honorable Alcee L. Hastings . The court specifically authorized any government agency to "release the grand jury materials to the Committee" (emphasis supplied) as well as to make such materials available for inspection and copying by the Committee. The court's order incorporates a "confidentiality procedures agreement" that the Committee advised it would employ to regulate access to grand jury material after their receipt. Under the confidentiality procedures agreement, however any "Member of Congress" (emphasis supplied) may have access to those materials.

The materials accompanying the court's order indicates that the Honorable Peter W. Rodino, Chairman of the Committee, submitted a letter to the court on July 15, 1987 requesting the grand jury materials. That letter was followed by a letter dated Au

gust 4, 1987, from Alan I. Baron, Special Counsel to the Committee. That letter suggests that a copy of the grand jury materials remains in the possession of John Doar of New York as well as in the possession of Public Integrity Section of the Criminal Division of the Department of Justice. Neither Chairman Rodino nor the Committee's special counsel sent notice of the request to Judge Hastings or his counsel nor, in so far as the undersigned can determine, did either request the court to provide such notice, Counsel for Judge Hastings first learned of the Order when he received a copy on August 6, 1987.

In re Petition to Inspect

The Chairman's request is the third petition this court has received seeking access to the grand jury materials. On June 6, 1983, the Investigating Committee of the Judicial Counsel of the Eleventh Circuit petitioned this court for permission to inspect and copy the same grand jury material. and Copy Grand Jury Material, Case No. 81-1-GJ (MIA). Judge Hastings subsequently cross-petitioned in that case for reciprocal disclosure to himself and his attorneys and for public disclosure.1 On December 19, 1983, the Honorable Eugene Gordon, United States District Judge, sitting by designation, granted the Investigating Committee's petition subject to eight (8) carefully drawn conditions.

Judge Hastings's cross-petition was denied. A

The Miami Publishing Company moved to intervene and also petitioned for public disclosure.

1.

copy of Judge Gordon's Order is appended to this Motion marked Exhibit 1.2

The conditions imposed by the 1983 order bear directly upon the need for this court to stay the August 5th Order until the true status of the grand jury material can be determined. The 1983 order provides "that the United States Attorney for the Southern District of Florida shall procure . all records, transcripts, minutes, and exhibits of Grand Jury 81-1-GJ (MIA). The court ordered that the only place that the Investigation Committee or its counsel could review the grand jury material was "in the United States Courthouse, Miami, Florida" and assigned the United States Attorney for the district "responsibility for implementing the provisions of this order and the continuous responsibility for preserving the secrecy of the Grand Jury Records."

Finally, the 1983 order imposed strict restrictions on photocopying and reproduction of grand jury material designed to assure that the situation suggested by the special counsel's letter could not occur. The order mandated.

[E]xcept as provided in paragraph Six (6) of this Order, there shall be no reproduction of the Grand Jury Records, by photocopying, electronic reproduction or recording, or by any other means, manual or mechanical.

2. That order was accompanied by a memorandum opinion and was subsequently affirmed. In re Petition to Inspect and Copy Grand Jury Materials, 576 F.Supp. 1275 (S.D. Fla. 1983), aff'd, 735 F.2d 1261 (11th Cir.) (special panel), cert. denied, 469 U.S. 884 (1984).