necessary to implement those powers.

Art. I, section 8.

In McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 421

1819), Chief Justice Marshall explained the meaning of this key

constitutional provision:

[T]he sound construction of the constitution must allow
to the national legislature that discretion, with
respect to the means by which the powers it confers are
to be carried into execution, which will enable that
body to perform the high duties assigned to it, in the
manner most beneficial to the people. Let the end be
legitimate, let it be within the scope of the
constitution, and all means which are appropriate,
which are plainly adapted to that end, which are not
prohibited, but consist with the letter and spirit of
the constitution, are constitutional.

As Judge Butzner noted, Chief Justice Marshall's reasoning applies to these proceedings. (A.168). To decide whether articles of impeachment should be preferred is within the scope of the constitutional authority conferred on the House. Examination of information that caused the grand jury to indict Judge Hastings is, in the words of Chief Justice Marshall, a means which is "plainly adapted to that end." Kilbourn v. Thompson, 203 U.S. (13 Otto) 168, 190 (1880), supports the conclusion that the power to impeach includes the power to obtain evidence:

The House of Representatives has the sole right to
impeach officers of the government, and the Senate to
try them. Where the question of such impeachment is
before either body acting in its appropriate sphere on
that subject, we see no reason to doubt the right to
compel the attendance of witnesses, and their answer to
proper questions, in the same manner and by the use of
the same means that courts of justice can in like
cases.

Proceedings during the impeachment investigation of

President Nixon serve as a precedent in this regard. There, a grand jury recommended that its report be sent to the Committee on the Judiciary, and the Committee on the Judiciary thereafter requested that material. The district court granted the recommendation and request, a determination that was affirmed by the Court of Appeals. See In re Report and Recommendation of June 5, 1972 Grand Jury, 370 F. Supp. 1219 (D.D.C.) mandamus denied sub nom. Haldeman v. Sirica, 501 F.2d 714 (D.C. Cir.

1974).

The Court below also recognized that the power of the House to obtain evidence in an impeachment inquiry derived from the Speech or Debate Clause of Article I, Section 6. See In re Grand Jury Investigation of Ven-Fuel, 441 F. Supp. 1209 (M.D. Fla. 1977).

This clause grants to Congress investigatory power as long as the investigation in question falls within the

"legitimate legislative sphere" of Congress.

Eastland v. United

States Servicemen's Fund, 421 U.S. 491, 553 (1975). The Supreme Court defined legislative activities that are embraced by the Speech or Debate Clause as follows in Gravel v. United States,

408 U.S. 606, 625 (1972):

[T]hey must be an integral part of the deliberative and
communicative process by which Members [of Congress]
participate in committee and House proceedings with
respect to the consideration and passage or rejection
of proposed legislation or with respect to other
matters which the Constitution places within the
jurisdiction of either House.

A congressional investigation relating to the impeachment of a

federal judge clearly satisfies this definition.

Moreover, judicial interference with proper Congressional functions is improper. 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.

This basic principle of non-interference was recognized in the course of the recent impeachment proceedings of former United States District Judge Harry E. Claiborne. There, Judge Claiborne sued to enjoin the Senate from receiving evidence through a committee, rather than the full Senate. Even though the Court did not necessarily approve of this procedure, the suit was dismissed on the ground that no judicial review of impeachments was permissible. Judge Harold Greene stated:

[T]he question is not whether I, or any other judge, would
have organized the impeachment process and impeachment
procedure the way it was organized in this instance...but
the question is whether this Court has the authority to
interfere with the choice made by the Senate.
judgment, the answer is clearly no....

In my

The Speech and Debate Clause of the Constitution, Article I, Section 6, Clause 1, states that the Senators and Representatives "shall not be questioned in any other place" for any speech and debate in either House. That means as Powell v. McCormack, [395 U.S. 486 (1969)] teaches, that they may not be called into court to defend their actions.

The Supreme Court said in Gravel v. United States, that the Speech and Debate Clause includes not just the passage or rejection of proposed legislation, but all other matters which the Constitution places within the jurisdiction of either House, and impeachment surely is that.

It would be an extraordinary concept inimical to a democratic society for a court to halt the debates or votes of an elected Senate because he does not approve of the methods which have been used. The Senate's exercise of

power to try impeachment is clearly not reviewable under the
impeachment clause itself. Article I, Section 3, Clause 6
provides that the Senate shall have the "sole" power to try
all impeachments.

Claiborne v. United States Senate, (D.D.C., C.A. No. 86-2780,
October 8, 1986 transcript contained in Proceedings of the United
States Senate in the Impeachment Trial of Harry E. Claiborne,
(99th Congress, 2d Session) at 191-92. (A.103-104).

Power is thus vested in the House to obtain these materials by compulsory process, if necessary. As a matter of comity with a coordinate branch of government, the Committee has chosen to request the grand jury materials from the court supervising the grand jury. This was the approach previously taken by the Committee before Judge Sirica during the Watergate inquiry. re Report and Recommendation of June 5, 1987 Grand Jury, supra.

In

II. THE DISTRICT COURT CORRECTLY HELD THAT THE COMMITTEE ON THE
JUDICIARY, WHEN CONDUCTING AN INVESTIGATION PERTAINING TO
THE IMPEACHMENT OF A CIVIL OFFICER, IS ENTITLED, PURSUANT TO
FED.R.CRIM.P. 6(e)(3)(C)(i), TO OBTAIN THE RECORD OF THE
GRAND JURY WHICH INDICTED THAT OFFICER.

Judge Butzner held, and Appellant has conceded (A.26-27), that the Committee's investigation is preliminary to or in connection with a "judicial proceeding," i.e. a Senate impeachment trial (A.170-171), and therefore the Committee may seek disclosure pursuant to Fed.R.Crim.P. 6(e)(3)(C)(i).

Although the rule does not define "judicial proceedings," this position is well supported by the law concerning Rule 6(e) and the nature of impeachment.

The leading case on the meaning of "judicial proceedings" in the context of Rule 6(e) is Doe v. Rosenberry, 255 F.2d 118 (2d Cir. 1958), where the Court confronted the question of whether an investigation by a local bar association for the purpose of

bringing disciplinary proceedings against an attorney was

preliminary to "judicial proceedings."

affirmative, Judge Learned Hand wrote:

In holding in the

[T]he term "judicial proceeding" includes any proceeding
determinable by a court, having for its object the
compliance of any person, subject to judicial control, with
standards imposed upon his conduct in the public interest,
even though such compliance is enforced without the
procedures applicable to the punishment of crime. An
interpretation that should not go at least so far, would not
only be in the teeth of the language employed [in Rule
6(e)], but would defeat any rational purpose that can be
imputed to the Rule. 255 F.2d at 120.

The Constitution itself, as well as the practice in impeachment cases, makes it clear that when the Senate sits for the purpose of an impeachment, it functions in a judicial capacity. That is, whether or not the Senate calls itself a

"court,

"13 an impeachment trial clearly is judicial in nature and

3 The modern practice has been for the Senate to refer to its proceedings as a "court of impeachment." See, e.g. Proceedings of the United States Senate in the Impeachment Trial of Harry E. Claiborne, 99th Congress, 2d. Sess., at 85, (Presiding Officer opens the proceedings by declaring," [t]he Senate will now proceed as a court of impeachment..." The votes on each Article of Impeachment were likewise taken in the name of the "Court of Impeachment." Id. at 291-297). See also Proceedings of the United States Senate in the Trial of Impeachment of Halsted L. Ritter, United States District Judge for the Southern District of Florida (74th Congress, 2d Sess.) at 15, (President of the Senate announces that "the Senate is sitting as a court of impeachment").