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 In the UNITED STATES COURT OF APPEALS No. 87-5857 In Re GRAND JURY PROCEEDINGS On Appeal from the Four 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. 1. The Committee proposed and the court below approved access to the grand jury procedures that authorized immediate 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. 2. problem. The The Committee misses the true separation of powers danger here is analagousto, but more compelling than, the danger that concerned the Supreme Court in United States v. Sells Engineering, 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 court has ever material approved that had not been disclosure of grand jury examined by the presiding judge. federal court has ever grand jury for use outside the There is no reported decision in which a approved release of an entire criminal justice system with the sole decision in In re Petition to exception of this court's Inspect and Copy Grand Jury 2 Material, 735 F.2d 1261 cert. denied, 469 U.S. 884 (1984). (11th Cir.) (special panel), There the access was granted only to federal judges to enable them to determine whether and what material might be material to an impeachment inquiry. In every recent decision by the Supreme Court, that court has found that the disclosure requested was not adequately justified even as they reaffirmed the principles under which disclosure might be justified. See Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211 (1979); Illinois v. Abbott & Associates, 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 |