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the contemplated civil fraud suit. The court of appeals vacated and remanded, holding that the Civil Division attorneys must establish a particularized need for disclosure and that the district court had not properly applied that standard in ordering disclosure. The Supreme Court affirmed.

463 U.S. at 420-23, 445.

In reaching this result, the Supreme Court reaffirmed the view that the rule of secrecy is necessary to protect the independence and integrity of the grand jury. 463 U.S. at 422-26. Moreover, the Court saw disclosure of grand jury material for use outside the criminal justice system as threatening "affirmative mischief" in three respects:

First, disclosure to Government bodies raises
much the same concerns that underlie the rule of
secrecy in other contexts. Not only does disclo-
sure increase the number of persons to whom the
information is available (thereby increasing the
risk of inadvertent or illegal release to others),
but also it renders considerably more concrete the
threat to the willingness of witnesses to come
forward and to testify fully and candidly.
If a
witness knows or fears that his testimony before
the grand jury will be routinely available for use
in governmental civil tigation or administrative
action, he may well be less willing to speak for
fear that he will get himself into trouble in some
other forum .

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Second, because the Government takes an
tive part in the activities of the grand jury,
disclosure to Government attorneys for civil use
poses a significant threat to the integrity of the
grand jury itself. If prosecutors in a given case
knew that their colleagues would be free to use
the materials generated by the grand jury for a
civil case, they might be tempted to manipulate
the grand jury's powerful investigative tools to
root out additional evidence useful in the civil
suit, or even to start or continue a grand jury

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inquiry where no criminal prosecution seemed
likely. Any such use of grand jury proceedings to
elicit evidence for use in a civil case 15 13-
proper per se
we do not mean to impugn
the professional characters of Justice Department
lawyers in general;
Our concern is based
less on any belief that grand jury misuse is in
fact widespread than on our concern that, if and
when it does occur, it would often be very diffi-
cult to detect and prove. . . . Such a potential
for misuse should not be allowed absent a clear
mandate in the law.

While

Third, use of grand jury materials by Govern-
ment agencies in civil or administrative settings
threatens to subvert the limitations applied out-
side the grand jury context on the Government's
powers of discovery and investigation.
there are some limits on the investigative powers
of the grand jury, there are few if any other fo-
rums in which a governmental body has such rela-
tively unregulated power to compel other persons
to divulge information or produce evidence.
If Government litigators or investigators in civil
matters enjoyed unlimited access to grand jury ma-
terial, though, there would be little reason for
them to resort to their usual, more limited av-
enues of investigation. To allow these agencies
to circumvent their usual methods of discovery
also would not only subvert the limitations and
procedural requirements built into those methods,
but would grant to the Government a virtual ex
parte form of discovery, from which its civil lit-
igation opponents are excluded unless they make a
strong showing of particularized need. In civil
litigation as in criminal, “it is rarely justifi-
able for the [Government] to have exclusive access
to a storehouse of relevant fact." .

463 U.S. at 432-34; citations and footnotes omitted.

Each of the concerns that the Court identified in Sells is present in enhanced form here. Disclosure to the 435 elected members of the House, who are protected by the Speech and Debate Clause, increases the risk of improper disclosure far more than would disclosure to Justice Depart

ment employees working on a civil action, who would be subject to judicial as well as executive sanction if improper disclosure occurred. So too, lawyers and others who might appear before a Grand Jury to provide information concerning a federal judge under investigation might well be less willing to speak if they thought the views they had expressed concerning an unindicted or acquitted judge might involve them in impeachment proceedings before the House. Moreover, unlimited access to grand jury material would diminish the incentive for a House Committee to conduct an independent inquiry; would enable it to circumvent the usual methods, limitations, and procedures established by the House for the conduct of such investigations; and would provide the. Committee. with exclusive access to a storehouse of relevant fact.

The potential for executive misuse in a manner that would undermine the independence of the courts and would undermine the integrity of the House's function as the holder of the sole power of impeachment is far and away the most important of these concerns, however. It is that concern that must control in establishing the standard that a House committee must satisfy before a court can determine whether and what grand jury material should be disclosed in connection with an impeachment inquiry into the conduct of a federal judge.

The presence of those concerns mandates two further consequences in the present case. First, they make it clear that a House Committee must satisfy the particularized need standard prescribed by the Supreme Court in Sells in order to obtain disclosure of any grand jury material for use in an impeachment inquiry. Second, because the Court in Sells indicated the standard should be flexible enough to take into account the nature of the party submitting the request and the purpose for which the materials were sought, it is also clear that the concerns must be balanced against the interests that might be furthered by disclosure in a separation of powers analysis to determine how that standard should be applied in cases such as this one.

In Sells, the Supreme Court explicitly rejected the government's argument that the particularized need standard "ought not be applied when Government officials seek access ' in furtherance of their responsibility to protect the public weal.'” 463 U.S. at 443; citation omitted. The Court concluded "that Douglas Oil governs disclosure to public parties as well as private ones Id. at 444. The

Court went on to express the view:

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The Douglas Oil standard is a highly flexible one,
adaptable to different circumstance and sensitive
to the fact that the requirements of secrecy are
greater in some situations than in others
[T]he standard itself accommodates any relevant
considerations, peculiar to Government movants,
that weigh for or against disclosure in a given

case.

Id. at 445. The considerations relevant to this case make it clear that the standard must be consistent with the high standard traditionally employed when one governmental agency seeks confidential material to aid it in the performance of its constitutional functions from another governmental agency where the right to maintain the confidentiality of that material is a necessary incident to that other agency's performance of its constitutional functions.

B

A HOUSE COMMITTEE REQUEST THAT DECLINES TO SPECIFY
ANY NEED OTHER THAN A GENERALIZED INTEREST IN ACCESS
TO ALL MATERIAL POTENTIALLY RELEVANT TO AN IMPEACH-
MENT INQUIRY IS INSUFFICIENT TO OVERRIDE THE INTER-
ESTS PROTECTED BY THE RULE OF SECRECY, ESPECIALLY
WHERE THE JUDICIAL BRANCH HAS ALREADY REVIEWED THE
GRAND JURY MATERIAL AND FORWARDED A RECORD THAT IN-
CLUDES ALL MATERIAL FOUND RELEVANT TO A DETERMINA-
TION WHETHER IMPEACHMENT IS WARRANTED.

Based upon the Supreme Court's recent interpretation and application of separation of powers doctrine, there are strong and principled reasons for arguing that material compiled by a Grand Jury in a criminal investigation should never be disclosed to a House Committee for use in an impeachment inquiry. For example, the Court has recently and repeatedly declared unconstitutional interbranch reassignments of powers that served necessary and proper governmeninterests where the proper allocation of those powers had been expressly and intentionally made by the Constitution. Buckley V. Valeo, 424 U.S. 118 1, - 31 (1976) (Congress may not exercise power to appoint legislative of

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