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CERTIFICATE OF SERVICE
I certify that one copy of the foregoing was sent to the
following individuals in the manner indicated below, this 8th day
JUDGE HASTINGS'S REPLY TO
MEMORANDUM OPPOSING EXTENSION OF STAY
points urged by the Committee on the Judiciary (the "Committee") in opposition to extending the stay merit reply. The Committee proposed and the court below approved access to the grand jury
all 435 members of the Committee to argue now that House Judiciary Committee,
that authorized immediate material by the 100 Senators as well House. It is disingenuous for the "the requesting party herein is the and is mere speculation to assume that Senators will seek or obtain grand jury materials...."
(Comm. Opp. 17). The risk is
not merely to Judge Hastings; it
is also that Judge Butzner's
opinion will be viewed as precedent for the future. The Committee offers no substantive reasons to explain why court-approved
disclosure to the Senate would ever be proper in connection with an exercise of investigative powers that the House holds incident t its sole power of impeachment, and there are none.
The Committee misses the true separation of powers problem. The danger here is analagousto, but more compelling than, the danger that concerned the Supreme Court in United States v. Sells Inc., 463 U.S. 418 (1983). The
central concern is that the Justice Department will use the grand jury to investigate allegations into a judge's conduct in office
in order to make a record that will stimulate a circuit council and/or the House to conduct inquiry to determine whether impeachment is warranted. The decision below creates precisely the kind of incentive for misuse of the grand jury that the Court sought to preclude through decisions such as that in Sells.
3. Precedent and policy both conflict with the order entered below. There is no reported decision in which a federal interbranch disclosure of grand jury
court has ever
material that had not been examined by the presiding judge. There is no reported decision in which a federal court has ever approved release of an entire grand jury for use outside the
exception of this court's Inspect and Copy Grand Jury
criminal justice system with the sole decision in In re Petition to
Material, 735 F.2d 1261
cert. denied, 469 U.S. 884 (1984).
Cir.) (special panel),
There the access was granted only to federal judges and what material might be
to enable them to determine whether material to an impeachment inquiry. the Supreme Court, that court has requested was not adequately
In every recent decision by found that the disclosure justified even as they reaffirmed under which disclosure might be justified. See
Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211 (1979); Illinois v. Abbott & Associates, Inc., 460 U.S. 557 (1983); United States v. Baggot, 463 U.S. 467 (1983); United States v. Sells Engineering, Inc., supra. Precedent and policy both conflict with the order entered below.
4. The Committee now suggests that the harm to it stems from the risk that requested extension might "prolong the impeachment process beyond the life of the current Congress" and thus require that much of the work "be repeated by Members of the 101st Congress." The 100th Congress remains in session until] December 1988. With even modest expedition, this appeal can be promptly resolved. It is the Committee that raises speculative concerns.
Accordingly, Judge Hastings submits that the court should extend the stay pending disposition of the appeal and