which are both self-defeating and contradictory.

Moreover, in

the guise of objecting to this Order, he seeks to have this Court intrude into constitutional prerogatives which belong exclusively to the United States House of Representatives.

The Committee respectfully submits that the Order of August 5, 1987 granting the Committee's request for the grand jury's materials was proper. The District Court had the authority to provide this access based upon three separate and independent grounds: as a corollary to the authority of the House of Representatives to pursue its constitutional responsibility to conduct an impeachment inquiry; as an exercise of the District Court's inherent supervisory power over grand jury materials; and pursuant to Fed.R.Crim. P. 6(e)(3)(C)(i). Moreover, to set aside the Order may, to the detriment of the public interest, frustrate the Committee in carrying out its constitutional responsibility to conduct a full and fair impeachment inquiry.

II. FACTUAL BACKGROUND

On December 29, 1981, Grand Jury No. 81-1-GJ (MIA), sitting in the Southern District of Florida, returned indictments against Judge Hastings and William A. Borders, Jr., charging them with conspiracy and obstruction of justice. Mr. Borders was convicted by a jury on March 29, 1982. Judge Hastings was tried separately and was acquitted by a jury on February 4, 1983.

On March 17, 1983, two United States District Court Judges filed a Complaint with the Clerk of the Court of Appeals for the Eleventh Circuit. The Complaint requested that an investigation pursuant to the Judicial Councils Reform and Judicial Conduct and Disability Act, 28 U.S.c. sec. 372(c), be undertaken to determine whether Judge Hastings had engaged in conduct prejudicial to the effective and expeditious administration of the business of the

courts.

In response to this Complaint, the Chief Judge of the Eleventh Circuit appointed an Investigating Committee which conducted an investigation and other proceedings over a threeyear period. During that inquiry, the Investigating Committee sought and obtained the same grand jury materials which the Committee is now seeking. See In re Petition to Inspect and Copy Grand Jury Materials, 735 F.2d 1261 (11th Cir. 1984), cert. denied 469 U.S. 884 (1984), aff'g 576 F. Supp. 1275 (S.D. Fla. 1983).

Following the completion of its investigation, on August 4, 1986, the Investigating Committee submitted its Report and recommendations to the Judicial Council of the Eleventh Circuit. On September 2, 1986, the Council adopted the Investigating Committee's Report and its recommendation that consideration of impeachment of Judge Hastings was warranted.

On March 17, 1987, the Judicial Conference of the United States, in turn, also adopted those findings and recommendations and transmitted the Investigating Committee's Report and records

to the Speaker of the United States House of Representatives for use by the House in determining whether Judge Hastings' impeachment is warranted. The Investigating Committee's Report was referred to the Judiciary Committee. On March 23, 1987, two Members of the Judiciary Committee introduced House Resolution 128, which provides for the impeachment of Judge Hastings. This, too, was referred to the Committee.

On July 15, 1987, the Chairman of the Judiciary Committee, Representative Peter W. Rodino, Jr., wrote to Chief Judge King of the United States District Court for the Southern District of Florida, requesting access to the aforesaid grand jury materials for use in the impeachment inquiry. (Exhibit A attached hereto).

On August 5, 1987, Judge King issued an Order granting the

Committee's request.

Judge King immediately thereafter provided a copy of the Order to Judge Hastings and his counsel, and sua sponte placed the Order and Representative Rodino's request under seal. Judge Hastings then filed the instant motions to stay and to unseal the Order and documents in the Court's file pertaining to that Order. Pending this Court's disposition of those motions, and without prejudice to its request for the grand jury materials, the Committee voluntarily agreed not to seek or obtain said grand jury materials. (See Exhibit B, August 11, 1987 letter to Chief Judge King, from Alan I. Baron, Special Impeachment Counsel for

On August 11, 1987, Judge King issued an Order of Recusal

and Request for Designation. On August 27, 1987, the Honorable John D. Butzner, Jr., Senior United States Circuit Judge, was designated to hear this matter.

III. ARGUMENT

A. The Judiciary Committee is Entitled to the Grand Jury
Materials Pursuant to the House of Representatives' Sole
Power to Impeach.

The Committee's authority to investigate is concomitant to the constitutional power vested solely in the House of Representatives to impeach civil officers of the United States. In aid of its investigation, the Committee can and should obtain any materials relevant to the inquiry, even by its independent power of compulsory process, if necessary.

Because the power to impeach and try impeachments lies solely with the Congress, judicial interference with the process is improper. This basic principle was recognized by the judiciary in the course of the recent impeachment proceedings of 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 this procedure, it dismissed the suit 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, [408 U.S. 606 (1972)] 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, attached hereto as Exhibit C, and contained in Proceedings of the United States Senate in the Impeachment Trial of Harry E. Claiborne, (99th Congress, 28 Session) at 191-192. See also In re Grand Jury Investigation of Ven-Fuel, 441 F. Supp. 1299 (M.D. Fla. 1972) (Congress has right under Speech and Debate clause to obtain documents presented to grand jury).

Nevertheless, 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