raised concerns

the propriety of allowing the Senate to have access to the grand jury materials at this time. On this issue, I part company with the majority's analysis, although it would appear that little difference in result is likely. The majority indicates that the material may only be given to the Committee but acknowledges the Committee can then do with it as they see fit.

I have no quarrel with this conclusion, and were I exercising discretion as a trial judge, I would have done as the majority suggests. However, I cannot conclude that the district court under these circumstances abused its discretion by allowing the materials to be released in accordance with the Committee's confidentiality rules. Given that this all occurs long after the grand jury has finished its work, the criminal trial has concluded, and the Committee has already made public a synopsis of the grand jury proceedings, I cannot say the district court abused its discretion in allowing initially what the majority concludes can happen anyway. It seems to me that the majority has merely substituted its discretion for that of the district

court.

Finally, on the discretion issue, I would emphasize that it is still within the district court's discretion to deal with other (C)(i) disclosure requests. All the district court did here was to turn a copy of the grand jury materials over to the Committee. The district court is still the custodian of the

5.

official record of the grand jury, and thus it is to the district court that Judge Hastings initially should make his showing of particularized need if he seeks a copy of the grand jury record.

Pursuant to rule 41(b) of the Federal Rules of Appellate Procedure and Rule 27(a) of the Rules of this court, appellant United States District Judge Alcee L. Hastings moves that this court stay its mandate for a period of 30 days to permit him to prepare and file a petition for writ of certiorari asking the Supreme Court of the United States to review the judgment of this court in this case. In the alternative, pursuant to Rule

41(a), he asks this court to enlarge the period between the date on which judgment was entered and mandate will issue in order to permit the orderly consideration of this motion and the Emergency Motion to Extend Stay that he has filed in In re Grand Jury 86-3 (Miami), No. 87-6070 (11th Cir.). The judgment of this court in this case was entered on November 24, 1987. Unless relief is granted here, the mandate would issue on or about December 15, 1987.1

1. This is the first case in which a legislative committee has ever sought or obtained leave to inspect and copy an entire grand jury record. It is also the first time in which a House committee has sought the records of a grand jury that indicted a federal judge as part of an impeachment inquiry initiated to reinvestigate charges upon which the judge was acquitted by a jury. The central issue posed requires the courts to strike a balance between competing interests: The constitutional interest in applying the rule of secrecy to minimize incentives that might induce the Justice Department to misuse the grand jury's powers to investigate a federal judge and the constitutional interest of the House in conducting an impeachment inquiry. As in any

1. The presentation of this motion as an emergency motion stems from factors that are beyond counsel's reasonable ability to control. The undersigned is presently engaged in coordinating efforts to protect Judge Hastings's rights in connection with the impeachment inquiry being conducted by the Committee. He has served as primary counsel on all matters filed in the Southern District of Florida and in this court. He is also primary counsel in proceedings before a special committee of the Judicial Council of the Eleventh Circuit styled In the Matter of a Complaint Filed by William F. Weld. See Appendix to Emergency Motion to

significant case of first impression, the question how these interests should be balanced must always be fairly debatable.

The questions that must be resolved in striking the proper balance were subsumed in the first issue Judge Hastings presented in his appeal. Brief for Appellant United States District Judge Alcee L. Hastings at 1. The questions posed by that issue are of sufficient importance to warrant review by the Supreme Court. Judge Hastings recognizes that the Supreme Court might well uphold this court's disposition or might decline to consider the case. He submits, however, that the questions are such that he should be afforded an opportunity to present them for the Supreme Court's consideration.

2. A stay is necessary to prevent irreparable injury to Judge Hastings. Like the proverbial genie, once the information

now contained in the traditional bottle of secrecy that protects the records of the grand jury has been revealed, it will be impossible to restore fully the status quo. Judge Hastings submits that the same reasons that led this court to extend the stay of the district court's order in this case should now compel the brief additional stay sought here.

3. The fact that Judge Hastings will seek further review may result in additional delay in the Committee's inquiry, although this is far from clear. This court now has a second appeal stemming from further requests the Committee made to the

Extend Stay at 23-29, In re Grand Jury 86-3, No. 87-6070 (11th Cir.) The demands imposed upon him by the several pending proceedings have prevented him from preparing and submitting this motion earlier.