substantial harm from the issuance of a stay; (4) that
the public interest will be served by issuing the stay.

Ordinarily the first factor is the most important.
A finding that the movant demonstrates a likelihood of
success on the merits on appeal requires that we
determine that the trial court below was clearly
erroneous. . . . But the movant may also have his
motion granted upon a lesser showing of a 'substantial
case on the merits' when 'the balance of the equities
[identified in factors 2, 3, and 4] weighs heavily in
favor of granting the stay. Ruiz v. Estelle, 650 F.2d
555, 565 (5th Cir. 1981) (per curiam), cert. denied,
460 U.S. 1042 (1983). . .

781 F.2d at 1453.

original).3

(Citation omitted; bracketed material in

As will be shown below, Judge Hastings is unable to demonstrate that his position is supported by any of the relevant factors.

B. Judge Hastings Has Not Demonstrated A Likelihood of
Prevailing On The Merits on Appeal.

The Orders of August 5, 1987 and September 21, 1987 granting the Committee's request for the grand jury materials are based solidly on constitutional principles, case law, and rules of procedure. The Orders are supported by three independent grounds. First, the House of Representatives, in carrying out its responsibility to conduct an impeachment inquiry, possesses inherent constitutional authority to obtain by compulsory

process if necessary

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such material as the House determines to

3By stating that a "stay should ordinarily be granted when the movant demonstrates that he is likely to prevail on the merits", (Motion at 13), Judge Hastings both mischaracterized Garcia-Mir v. Meese, which describes a stay as an "extraordinary remedy", 781 F.2d at 1455, and omitted 3 of the 4 factors described above.

be relevant to the inquiry. Second, the Committee is entitled to the grand jury materials under Fed. R. Crim.P. 6(e)(3)(C)(i) which authorizes disclosure "preliminary to or in connection with a judicial proceeding." Third, the district court has the inherent supervisory power to disclose grand jury materials to Congress in an impeachment inquiry.

In his motion to extend the stay, Judge Hastings has not challenged the authority of the Congress to obtain and of the district court to disclose grand jury materials to the Committee. Indeed, Judge Butzner's scholarly analysis of these grounds (A.162) well supports the authority of Congress and the court to exercise their discretion in this matter.

Rather, Judge Hastings argues that the district court improperly exercised its discretion under any one of these grounds. He has fallen far short of meeting his burden of showing that the district court clearly erred. In opposing the disclosure order, Judge Hastings raises arguments that are not merely novel, but contrary to all law and practice on the subject. Indeed, his positions stand established constitutional and legal principles on their head, and would result in unprecedented judicial intrusion into constitutional prerogatives which belong exclusively to the House of Representatives.

1.

The district court properly found that the
Committee's need for the entire grand jury
record outweighed any remaining need for
grand jury secrecy.

Judge Hastings argues that the district court "failed to apply the balancing test required by separation of powers

principles when an interbranch transfer of confidential material

is requested."

(Motion at 20; emphasis in original). His

argument is refuted by both the record and governing legal

principles.

First, contrary to Judge Hastings' claim, Judge Butzner in fact did balance the Committee's need for the grand jury materials against the need for grand jury secrecy, as required by Douglas Oil v. Petrol Stops Northwest, 441 U.S. 211, 223 (1979). See A.167 and 174-75, where Judge Butzner cited Douglas Oil and explicitly found that the Committee had shown the requisite "particularized need" under the customary balancing test.

Judge Butzner correctly applied the balancing test. The need for grand jury secrecy here is minimal. In light of the fact that the grand jury long ago concluded its investigation and is, as Judge Hastings conceded below, "ancient history", (A. 19), all but one of the traditional policies advanced for preserving the secrecy of grand jury material are no longer applicable to this case. The Supreme Court summarized the reasons for secrecy in Douglas Oil, 441 U.S. at 219, n. 10 as follows:

1) To prevent the escape of those whose

indictment may be contemplated; 2) to insure the utmost
freedom to the grand jury in its deliberations, and to
prevent persons subject to indictment or their friends
from importuning the grand jurors; 3) to prevent
subornation of perjury or tampering with the witnesses
who may testify before [the] grand jury and later
appear at the trial of those indicted by it; 4) to
encourage free and untrammeled disclosures by persons
who have information with respect to the commission of
crimes; 5) to protect the innocent accused who is
exonerated from disclosure of the fact that he has been
under investigation, and from the expense of standing
trial where there is no probability of guilt.

Insofar as the fifth factor is concerned, disclosure of the

investigation and the expense of trial have already occurred. Moreover, since Judge Hastings requests public disclosure of the material, he apparently does not assert this interest. The only remaining interest concerns encouraging uninhibited testimony in other grand jury proceedings.

Balanced against this sole general secrecy interest is the specific and weighty constitutional responsibility of the Congress to conduct a full and fair investigation in a matter of grave significance to the entire Nation. The Committee's specific need for the grand jury material is particularly compelling here, since the testimony before the grand jury was virtually contemporaneous with the underlying events. The grand jury records contain the freshest recollection of the key witnesses in this case. The Committee's need for this material

now

-

-

is self-evident.

more than six years after these events Without full access to the grand jury materials, the public may not have confidence that the Congress considered all relevant evidence. To deny access to these materials would be nothing short of denying Congress the right to information that may shed light on the truth.

After the grand jury's functions are ended, disclosure is wholly proper where the ends of justice require it. U.S. Socony v. Vacuum Oil Co., 310 U.S. 150, 234 (1940). Further, as secrecy

needs become attenuated, as here, the burden on the party seeking

access to show justification is correspondingly reduced. Douglas

Oil, supra.

These considerations are very much the same as those which underlay the decision to release the same grand jury material to the Investigating Committee of the Eleventh Circuit Judicial Council. As this Court stated:

A thorough investigation is essential not only to
ensure the integrity of federal judges, but also to
instill public confidence in the judiciary... The
[Investigating] Committee must be able to represent to
the Council, and the Council must be satisfied, that
all available evidence of possible materiality has been
sifted: for the Committee to examine matters

extensively and find nothing may be as much a part of
its duty as to look at evidence whose incriminating
nature is known in advance.

In re Petition to Inspect, supra, 735 F.2d at 1273 (Emphasis
added).

Judge Hastings' appears to contend that a higher standard for disclosure under a different balancing test must be applied in the context of an "interbranch" disclosure of grand jury materials. He argues that the Committee's request should be gauged by so-called "separation-of-powers principles" (Motion at 20) instead of by resort to the customary Douglas Oil balancing test. That claim is flatly rejected by established law. "Douglas Oil governs disclosure to public parties as well as

private ones. United States v. Sells Engineering, Inc., 463 U.S. 418, 444 (1983). If anything, under the Douglas Oil test the fact that the requesting party is a coordinate branch of

government reduces the Committee's burden. It has been

recognized that "the need for secrecy is less where disclosure is