testimony of two identified and available witnesses and related exhibits presented to a recent grand jury that returned no indictment; on the record (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 before the court, a record that suggested the possibility of as well as the potential for Justice Department misuse of the grand jury's powers to make an impeachment record rather than to investigate a crime; and (4) No disclosure or testimony of the elected official's grand jury testimony could could properly be authorized until the elected official had been given notice and an opportunity to be heard on the Com mittee's requests. 5 Statement of Facts The Justice Department's Initial Kevin Gordon was a zoning officer for a small municipality Florida. Federal prosecutors in Miami believed that he was involved in criminal activity. In July 1985, they applied for authorization to tap his telephones. The application was approved by Judge Hastings, as duty judge, and he thereafter received progress reports and requests for extensions. On September 9, 1985, federal agents intercepted and recorded a telephone conversation between Gordon and attorney Richard Bonehill. In the course of that conversation, Gordon described a conversation that Gordon said said he had had with Steven Clark, the elected Mayor of Dade County. Gordon told Bonehill that the mayor had told Gordon that Judge Hastings had warned the mayor to stay away form Gordon because Gordon was "hot". The Justice Department promply terminated the investigation into Gordon's conduct and launched one into Judge Hastings's conduct. The Department ultimately persuaded Gordon to cooperate and used him to record a conversation with the The mayor reiterated his claim mayor. that the source of his information that Gordon was "hot" was Judge Hastings, but did not suggest that Judge Hastings had under surveil disclosed that Gordon was under lance. The Department thereafter 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 public meeting in a Miami hotel at which Judge Hastings spoke on the morning of September 6, 1985. The mayor alleged that Judge Hastings had taken him aside after the speech and told him to "stay away from Kevin Gordon,"; "he's hot"; and "he's using your name in Hialeah." reported The Department that the FBI had interviewed other people who had attended the speech, but had been unable to find anyone who had observed any conversation or or interaction between Judge Hastings and Mayor Clark following the speech. Nonetheless, the Department called Mayor Clark and FBI agent Chris Mazzella to testify before the grand jury on March 20, 1986. was returned, No indictment however, and the the Justice Department has not identified any ground upon which one might properly have been sought. 1 1 Sources close to the investigation have reportedly indicated that the Justice Department used the grand jury knowing On September 26, 1986, the Justice Department transmitted the allegations it had developed to to the chief judge of the Eleventh Circuit in the form of a a letter to the Judicial Coun complaint pursuant to cils Reform and Judicial Conduct and Dis ability Act (the "Act"). 2 Roney Chief Judge subsequently appointed a special committee to investigate the complaint and submit its report to the circuit council in accordance with the Act. 3 that there were no criminal matters to be investigated: When prosecutors decided they "U.S. Says Hastings Compromised Sting," The Miami Herald, Fri., Nov. 13, 1987, at Al, 1 & 22. 2 Pub. L. No. 96-458, 94 stat. 2035 (1980), codified as amended at 28 U.S.C. §§ 331, 332, 372 (c), 604 (h) (1982 & Supp. 1984). 3 At Judge Hasting request, Chief Judge Roney joined in authorizing the disclosure in the proceedings below of the Justice 9 |