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effect.4

Moreover, as the court below notes, "[t]he fact that Senators rather than Article III judges decide the case does not make it any less judicial; it merely points to a jurisdictional choice made by the framers for political and historical reasons." (A.171).

The scope of the impeachment power is set out in Article II, Section 4 of the Constitution:

The President, Vice President, and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

Thus, the categories of persons subject to impeachment are limited, as are the matters for which impeachment lies. In this respect, however, the limitation on scope is akin to that of attorney disciplinary proceedings and other quasi-judicial investigations that have been held to fall within Doe v.

Rosenberry. See cases discussed in 8 J. Moore, Federal Practice, paragraph 6.05(4) at 6-122 (2nd ed. 1987).

The House of Representatives is granted "the sole Power of Impeachment" in Article I, Section 2. This role has been likened to that of a grand jury. See Legal Aspects of Impeachment: An Overview, 46 (1974) (Department of Justice, Office of Legal Counsel). It is also analogous to the function performed by bar associations or other professional disciplinary boards in investigating and recommending sanctions preliminary to

4 Alexander Hamilton described the role of the Senate in impeachment trials as having a "judicial character as a court for the trial of impeachments." The Federalist No. 65 at 423. (Modern Library ed.)

action by a judicial body.

When judicial proceedings follow such investigations, they flow naturally, directly, and solely from

the earlier proceedings in which the materials are utilized.

Article I, Section 3 describes the Senate's role in

impeachment:

The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no person shall be convicted without the Concurrence of two thirds of the Members present.

The same section goes on to limit the consequences of

judgment in cases of impeachment:

Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.

Also pertinent is the provision in Article III, Section 2: "The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury..."

Thus, by its repeated use of the terminology associated with judicial proceedings (e.g. "trial," "try," "conviction," "judgment," "sitting... on oath or Affirmation"), as well as the inclusion of provisions relating to impeachment in the Article pertaining to the Judiciary (Article III), the Constitution makes it clear that when the Senate is sitting for that purpose, it is functioning in a unique judicial capacity.

Likewise, the actual practice with respect to the manner in which impeachment trials are held supports this view. As Senator

Sherman opined in the impeachment case of President Andrew

Johnson:

That this Senate is a court when it proceeds to try a case I think does not need any very long speech to prove. We examine witnesses; we convict or acquit; we try a case; we are sworn; and if there is any element of a trial or any idea of a court that does not enter into our organization I do not know what it can be.

Impeachment: Selected Materials, at 77.

The Supreme Court has also recognized the judicial character of impeachment. In Kilbourn v. Thompson, 103 U.S.(13 Otto) at 191, the Court stated: "The Senate also exercises the judicial power of trying impeachments and the House of preferring articles of impeachment."

Although the leading case on access by the Committee on the Judiciary to grand jury materials for impeachment purposes rested upon the inherent supervisory power of the district court, that court did not hold that disclosure was unavailable under Rule 6(e) (C)(3)(i). See In re Report and Recommendation of June 5, 1972 Grand Jury, supra. Indeed, a subsequent court, in rejecting a Congressional request for grand jury materials for oversightlegislative purposes, distinguished the watergate precedent on the grounds that an impeachment trial is "very much a judicial proceeding." In re Grand Jury Investigation of Uranium Industry, United States District Court for the District of Columbia, Misc. 78-0173, Memorandum and Order, August 16, 1979. (Opinion reproduced at A. 107.)

Similarly, it has been held that House and Senate

investigations into allegations of misconduct concerning their

own members are judicial in nature. Kilbourn v. Thompson, 103 U.S. 168, 191-93. Accordingly, courts have consistently

permitted the disclosure of grand jury materials to the appropriate Congressional committees charged with such

investigations done preliminarily to adjudication by the House or
Senate on the question of removal from those bodies. See United
States v. Harrison A. Williams, Jr., et. al, Cr. No. 80-00575
(E.D. N.Y., Dec. 22, 1980); United States v. Michael O. Myers,
Raymond Lederer, Frank Thompson, et. al., Cr. Nos. 80-00249, 80-
00253, 80-00291 (E.D.N.Y., June 27, 1980). (Copies reproduced at
A.123; A. 125.)

III. 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
THE INHERENT SUPERVISORY POWER OF THE COURT, TO OBTAIN THE
RECORD OF A GRAND JURY WHICH INDICTED THAT OFFICER.

The District Court appropriately concluded that the law of this Circuit mandates that the Committee on the Judiciary is entitled to obtain the grand jury materials premised upon the Court's inherent supervisory power. It was this authority which this Court relied upon in permitting disclosure of these same grand jury materials to the Judicial Council's Investigating Committee. In re Petition to Inspect and Copy Grand Jury Materials, 576 F. Supp. 1275 (S.D. Fla. 1983), aff'd 735 F. 2d 1261 (11th Cir.), cert. denied, 469 U.S. 884 (1984). This Court held that, in light of the unique circumstances involved in such an inquiry, and because of the quasi-judicial nature of the Investigating Committee's function, Fed. R. Crim.P. 6(e) did not

preclude the Court "from fashioning an alternate method for disclosure under its general supervisory authority over grand jury proceedings and records." In re Petition to Inspect, 735 F.2d at 1267-68.

The source of the District Court's inherent power beyond the literal wording of Rule 6(e) derives from the fact that the Rule is but a codification of common law standards pertaining to the scope of the power over grand jury records entrusted to the discretion of the district court. That these standards are not fixed is demonstrated by the fact that "Rule 6(e) has been repeatedly amended to incorporate subsequent developments wrought in decisions of the federal courts." Id. at 1268 (citing examples). Thus, the history of Rule 6(e) demonstrates that "the exceptions permitting disclosure were not intended to ossify the law, but rather are subject to development by the courts in conformance with the rule's general rule of secrecy." Id. at

1269.

Judge Sirica reached a similar conclusion when he authorized release of the Watergate grand jury report and materials to the House Committee on the Judiciary, in response to its request. "Rule 6(e), which was not intended to create new law, remains subject to the law or traditional policies that gave it birth." In re Report and Recommendation of June 5, 1972 Grand Jury, supra, at 1229.

The Eleventh Circuit's decision recognized that, consonant with the rule's policy and spirit, "courts are not empowered to

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