that the rule of grand jury secrecy was established to protect? STATEMENT OF THE CASE The Nature of the Action to This is an action by the Committee on the Judiciary (the "Committee”) of the United States House of Representatives (the "House") (A. 2-6). The Committee again asks the courts authorize interbranch disclosure of confidential information for use in an inquiry it is conducting to enable the House to determine whether United States District Judge Alcee L. Hastings should be impeached (id.). In the present action, however, the Committee seeks access to statutorily protected electronic surveillance material and to testimony and exhibits presented to a recent grand jury that returned no indictment (id.). Unlike its request in the prior action, the Committee seeks this information to investigate new charges that the executive brought to its attention, charges unrelated to those that were before the House when the inquiry as authorized (A. 2-6, 30-31). Judge Hastings opposed and opposes the requested disclosure on four grounds: (1) The statutory provisions regulating the use of 1 Appendix to Emergency Motion to Extend Stay Pending Disposition of Appeal. The Appendix contains the necessary substantive documents filed in the court below and includes all documents specified for inclusion in the Record Excerpts required by this court's Rule 22(a), other than the docket sheet from the court below. Counsel has included in the docket sheet as a Supplement to Appendix at the end of this brief (S.A. 1) and has filed a motion asking the court to waive the requirement of a separate Record Excerpts. electronic surveillance to intercept communications and the use and disclosure of the products of such surveillance do not permit the disclosures that the Committee seeks, and these are not materials over which the courts may claim any inherent power (A. 94-97, 112-19, 141-42). the (2) Established Rule 6(e) jurisprudence requires that Committee demonstrate that has sought but been unable satisfactorily to obtain evidence directly before claiming that it has a particularized need for disclosure of testimony and exhibits presented to a recent grand jury that returned no indictment through two identified and available witnesses (A. 130-31, 138-40). (3) The doctrine of separation of powers and the principles articulated in United States v. Sells Engineering. Inc., 463 U.S. 418 (1983), preclude the disclosure of either the electronic surveillance or the grand jury material on the record before the court, a record that suggests a real possibility that the Justice Department has misused the grand jury's powers to make an impeachment record rather than to investigate a crime (A. 119-40). attorney's (4) No disclosure of the intercepted telephone conversation or of the elected official's grand jury testimony could properly be authorized until the attorney and the elected official have been given notice and an opportunity to be heard on the Committee's requests (A. 9-10, 98-102). The Course of Proceedings and Deposition Below On September 25, 1987, the Committee's chairman sent the two ex parte letter requests that initiated this action directly to the Honorable John D. Butzner, a Senior Circuit Judge in the Fourth Circuit, at his chambers in Richmond, Virginia (A. 2-6). On October 19, Judge Butzner transmitted the requests to the court below and sent copies to counsel who had represented Judge Hastings in the prior action (A. 1). Upon his redesignation, Judge Butzner scheduled a hearing for November 10 and requested that counsel submit lists of authorities prior to that date (S.A. 1). On November 3, Judge Hastings filed a formal objection to assure that the court and counsel for the Committee were aware of his position that the attorney whose conversation was intercepted and the elected official whose grand jury testimony was sought were persons entitled to notice and an opportunity to be heard (A. 9-10). Neither was afforded any notice, and neither appeared. Thereafter, the parties filed the requested lists and other materials that became part of the record (A. 11-31). On November 10, 1987, the court heard oral argument by special counsel for the Committee (A. 54-79, 145-66), counsel for Judge Hastings (A. 80-143, 168-72), and counsel from the Justice Department's Public Integrity Section on behalf of the United States (A. 166-68). At the urging of counsel for the Committee and Judge Hastings, the court undertook an in camera examination of the sealed electronic surveillance material and later directed that a sealed copy be included in the record so it would be available to this court (A. 173-78). The district court filed its order and a supporting opinion on December 2, 1987 (A. 32-34, 35-47). The court ruled that Judge Hastings did not have standing to oppose disclosure of electronic surveillance material because he was not an "aggrieved party" within the statutory definition (A. 38-40). The court decided, however, that it would view Judge Hastings as an amicus curiae and consider his arguments in carrying out the responsibilities imposed upon the court by the electronic surveillance statute (A. 40-41, 41 n.3). The court granted the Committee's request to copy and inspect the sealed electronic surveillance materials, including the intercepted telephone communication (A. 32-33). The court ruled that the Committee was "entitled to receive from" a former prosecutor and two FBI agents "any information that they may have concerning the conduct of Judge Hastings in connection with the electronic surveillance (A. 33). The court granted the Committee's request to inspect and copy the grand jury testimony of the elected official and an FBI agent and any related exhibits presented to the grand jury (A. 34). The court did not address the question whether the attorney or the elected official were entitled to notice and an opportunity to be heard. Statement of Facts The Justice Department's Initial Kevin Gordon was a zoning officer for a small municipality in Dade County, Florida (A. 2-6, 23-25). Federal prosecutors in Miami believed that he was involved in criminal activity (id.). In July 1985 the prosecutors applied for authorization to tap his telephone (id.) The application was approved by Judge Hastings, as duty judge, and he thereafter received progress reports and requests for extensions (id.). On September 9, 1985, federal agents intercepted and recorded a telephone conversation between Gordon and attorney Richard Bonehill (A. 23-25). In the course of that conversation, Gordon described a conversation that Gordon had had with Steven Clark, the elected Mayor of Dade County (id.). Gordon told Bonehill that the mayor had told Gordon that Judge Hastings had warned the mayor to stay away from Gordon because Gordon was "hot" (id.). the The mayor The Justice Department promptly terminated investigation into Gordon's conduct and launched one into Judge Hastings's conduct (A. 2-6, 23-25). The Department ultimately persuaded Gordon to cooperate and used him to record a conversation with the mayor (id.). reiterated his claim that the source of his information that Gordon was "hot" was Judge Hastings, but did not suggest that Judge Hastings had disclosed that Gordon was under surveillance (id.). The Department persuaded Mayor Clark to submit to an interview and thereafter used the powers of Grand Jury 86-3 (Miami) to compel and record his testimony as well as that of an FBI agent who had participated in the investigation (id.). Mayor Clark and FBI agent Chris Mazzella testified before the grand jury on March 20, 1986 (A. 5-6). No indictment was returned, however, and the Justice Department has not identified any ground upcn which one might |