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allegedly privileged information prior to consideration of the appeal on the merits, the Court focused instead on the appellant's failure to demonstrate that the district court's decision was clearly erroneous. Since no showing of probable success on the merits had been made and the balance of equities favored the appellee, the stay was denied. In Re Grand Jury Proceedings is applicable here, and requires denial of the stay sought by Judge Hastings.7


Judge Hastings Has Not Demonstrated That

A Stay Will Not Harm the Committee.

Judge Hastings has not shown that the stay would not harm the Committee. In fact, a stay would unnecessarily hinder the Committee's consideration of evidence bearing upon Judge Hastings' conduct. The work of the Eleventh Circuit Judicial Council's Investigating Committee was itself substantially prolonged by delays caused by repeated stays of the disclosure order of the district court in In Re Petition to Inspect, supra. The Committee is determined to conduct a full, fair and expeditious impeachment inquiry. It would be inappropriate for the judicial branch to apply brakes to the process of scrutinizing the conduct of a judge, by imposing a stay which would indefinitely deprive the Committee of relevant evidence it seeks to review. It is also inappropriate for Judge Hastings to

7of course, Judge Hastings does not need a stay in order to pursue his appeal from the district court's denial of his request for access. To that extent, denial of a stay will not moot this appeal.

presume to dictate the scheduling of the House's consideration of the inquiry concerning his possible impeachment.

Unlike the investigation of the Judicial Council, the time available for a Congressional impeachment inquiry is limited. Should the delay caused by an indefinite judicial stay prolong the impeachment process beyond the life of the current Congress, much of the work of that Congress may have to be repeated by Members of the 101st Congress. Not only would such an exercise impose unnecessary burdens upon Members of Congress, but most importantly, would interfere with the ability of the Congress to attend to other matters of national importance.

E. Judge Hastings Has Not Demonstrated That the
Public Interest Would be Served by a Stay.


A stay would be a disservice to the public interest. public, of course, has a weighty interest in the ability of its elected representatives to conduct an impeachment inquiry fully, fairly and expeditiously.

by unnecessary delay.

That ability will hardly be enhanced

Grand jury disclosure orders are not reviewable on appeal where review would delay or interfere with an ongoing criminal proceeding. See State of Ill. v. F.E. Moran, Inc., 740 F.2d 533, 536 (7th Cir. 1984), where the court said:

The Supreme Court, attaching great importance to
expediting criminal proceedings, has held that the
policy against interlocutory criminal appeals outweighs
the policy of allowing immediate appellate review of
orders that impair substantial rights. See, e.g.
DiBella v. United States, 369 U.S. 121 (1984) . .

Our conclusion [is] that an order to disclose grand jury testimony is appealable (as long as the

appeal will not delay, or, we suppose, interfere with)
a criminal proceeding

(Emphasis added).

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Neither should the appellate process serve to

delay impeachment proceedings.


Denial of Judge Hastings' Request for Disclosure of
the Grand Jury Material to Him is Irrelevant to
Consideration of the Instant Orders.

Judge Hastings' next argues that unless the Court grants his own requests for disclosure of the grand jury materials

to himself and to the public at large be made to the Committee.


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disclosure should not

However, the requests of the Committee

and of Judge Hastings raise separate and independent issues. Each must be considered on its own merits. There is absolutely no basis (and Judge Hastings cites no authority) for conditioning the Committee's right of access on reciprocal access by Judge Hastings or the public.


In Eastland, supra, the Supreme Court held that the Speech or Debate Clause "forbid[s] invocation of judicial power to challenge the wisdom of Congress' use of its investigative authority." 429 U.S. at 511. In order to prevent the "frustration [of] a valid congressional inquiry" by "protracted delay" caused by litigation, the Court declared that the courts

8These requests, never formally made by Judge Hastings, were alluded to by Judge Hastings throughout the proceeding in the district court. The Committee took no position on Judge Hastings' request for disclosure to himself and to the public; the Department of Justice opposed his requests.

of appeal "have a duty to see that the litigation is swiftly

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During the Watergate impeachment inquiry, the Committee

requested grand jury materials from the United States District Court for the District of Columbia.

See In Re Report and

Recommendation, supra, 370 F. Supp. 1219 (D.D.C. 1974). The judicial branch approved the Committee's request expeditiously and refused to delay access to the materials pending an appeal. Judge Sirica entered an order releasing the grand jury materials to the Committee on March 18, 1974. Id. The Court of Appeals affirmed that order on March 21, 1974, and issued a final opinion on March 27, 1974. Haldeman v. Sirica, 501 F.2d 714 (D.C.Cir.


We request that this Court act equally expeditiously and refuse to delay the work of the Committee in conducting its impeachment inquiry.

The motion for stay should be denied.

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M. Elaine Mielke

General Counsel

United States House of Representatives Committee on the Judiciary

Room 2137

Rayburn House Office Building

Washington, D.C. 20515

(202) 225-8088

Attorneys for the United States House of Representatives, Committee on the Judiciary

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