guilty. In closing, Judge Hastings's counsel argued that it was the government's evidence that vas suspect and that

Judge Hastings was not guilty.

The jury that considered all

the testimony and evidence and argument agreed with Judge Hastings.

that heard both sides of the On February 4, 1983,

it returned a unanimous verdict of not guilty. Judge Hastings promptly resumed his duties as a judge and has since performed them fully.

Also more than four years ago and only six weeks after the not guilty verdict, in March 1983, two of the three district-judge members of the Judicial Council of the Eleventh Circuit (the "Council"), both from outside the Southern District of Florida, filed a complaint under 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). Based upon newspaper clippings and this court's opinion upholding Borders's conviction, that complaint realleged that Judge Hastings had committed the high crime in office for which the jury had just acquitted him and called upon the Council to recommend his impeachment. Then Chief Judge Godbold of this court promptly appointed himself, two other judges of this court, and two district judges within the circuit as a special committee (the "Investigating Committee") to investigate the complaint. The Investigating Committee promptly retained John Doar of New York, the lawyer who had served as

chief counsel to Chairman Rodino and the Committee in connection with its impeachment inquiry into the conduct of former President Nixon, as its principal investigator. Chief Judge Godbold issued a News Release announcing that a complaint had been filed against Judge Hastings and that the Investigating Committee had been appointed and had retained Mr. Doar. The chief judge, however, rejected Judge Hastings's request that all proceedings be open to the public. Judge Hastings thereafter declined to participate in any proceedings until his constitutional challenges to the Act had been resolved. In June 1983, the Investigating Committee sought access to the complete record of the proceedings of Grand Jury 81-1.

Three years ago, in 1984, this court, through a panel of judges specially designated by the Chief Justice to exercise its powers, decided that the Investigating Committee was entitled to examine the entire grand jury record. In re Petition to Inspect and Copy Grand Jury Materials (Hastings), 735 F.2d 1261 (11th Cir. 1984), aff'g 576 F. Supp. 1275 (S.D. Fla. 1983) (Gordon, J., by designation), cert. denied, 469 U.S. 884 (1984). This court premised that decision, in part, upon two factors. It viewed the disclosure as mandated by Congress when it adopted the Act. 735 F.2d at 1269-70. It also noted that the disclosure was being made to a committee of federal judges, officers within the judicial branch and officers of the kind who are ordi

narily responsible for screening grand jury records to determine whether and what disclosure to parties outside the criminal justice system is necessary and proper. Id.

One year ago, in August 1986, the Investigating Committee finished conducting "an investigation as extensive as it considers necessary”, 735 F.2d at 1269, quoting 28 U.S.C. § 372 (c) (5) (emphasis in opinion). It filed with the Council its 381-page report and recommendations and the record of

its proceedings, a record that included transcripts of its hearings totaling some 4,880 pages and some 2,800 exhibits it had received as evidence. It recommended that the Council ignore the jury's verdict and find that Judge Hastings had participated in the corrupt conspiracy with Borders and had presented false testimony and fabricated evidence at his trial. It recommended that the Council certify the matter to the Judicial Conference of the United States (the "Conference") on the basis of these findings. The Investigating Committee did not and the Council refused to supply a copy of the record compiled by the Investigating Committee to Judge Hastings or his counsel. The Council did agree, however, that they could study these materials in Atlanta during the three weeks they allowed for any response the Judge might choose to make. Judge Hastings again declined to participate and renewed his challenge to the constitutionality of the Act. Less than one month later, in September 1986, the Council issued its certificate transmitting

the matter to the Conference.5

The Conference similarly refused to give Judge Hastings a copy of the Investigating Committee's report or record, although it did extend the access period and made some accommodations to facilitate his counsel's review.6 In March 1987, the Conference certified to the House that it had determined that "consideration of impeachment may be warranted (A. 6)." Thereafter, it transmitted the Investigating Committee's 381-page report, 4880-page transcript, and 2800 exhibits to the House. The House referred the matter to the Committee which in turn assigned it to its Criminal Justice Subcommittee (the "Subcommittee”). To date, the Committee

and Subcommittee have refused to supply a copy of or grant Judge Hastings or his counsel access to the record transmitted by the Conference.7

See, e.g., materials at A. 40-45 (summarizing), 6-7 (Conference Certificate), 156-61 (Council Certification).

5.

6. Based upon the limited access afforded one of Judge Hastings's counsel prepared a provisional report. Anderson, A Provisional and Preliminary Report on the Proceedings Against United States District Judge Alcee L. Hastings: 1981-1986 (169 pages). Judge Hastings submitted that report to Congress in support of The Petition of the Honorable Alcee L. Hastings, A United States District Judge, for Redress of Grievances and other Legislative Relief (filed Jan. 16, 1987). A copy of the Petition and Excerpts from the report were filed in the court below (A. 46-66).

7. See, eg, summary at A. 135-37; see also letters at Add. 1-7.

The Present Proceedings

On July 15, 1987, the Chairmen of the Committee submitted an ex parte request to the chief judge of the court below asking that all records of proceedings of Grand Jury 811 be released to the Committee (A. 1-2). Under the terms of the order proposed by the Committee those records were to become immediately available to all members of Congress, the 100 Senators and the 435 Representatives, and such staff as the Chairman might approve (A. 9-10). On August 5, the chief judge issued the requested order and sent a copy to counsel for Judge Hastings (A. 13-16). The following Monday, Judge Hastings filed an emergency motion asking the court to stay the August 5 order until Judge Hastings could be heard (A. 17-33). Counsel for the Committee agreed not to seek or accept the grand jury material until that motion was decided (A. 67). Thereafter, the judges of the Southern District again recused themselves, and the Chief Justice designated Senior Circuit Judge John D. Butzner, Jr., to hear the case (A. 68-71).

After further briefing, Judge Butzner heard argument on September 15, 1987. On September 21, he filed the order that gave rise to this appeal accompanied by a memorandum opinion (A. 162-78). Judge Butzner viewed the constitutional assignment of the sole power of impeachment to the House as establishing both the need and the right of the Committee to obtain a copy of the complete grand jury record