suggest that it had made any effort to interview or obtain testimony or evidence from Mayor Clark directly. 3. The Proceedings Below. On October 10, 1987, the district court notified Judge Hastings of the requests and afforded him an opportunity to be heard. Judge Hastings opposed the requests. The district court filed an order with opinion authorizing disclosure on December 2, 1987. In re Grand Jury 86-3 (Miami), 673 F. Supp. 1569 (S.D. Fla. 1987) (Butzner, J., by designation).6 The district court ruled that the members and staff of a legislative committee conducting an impeachment inquiry are "investigative or law enforcement officer [s]" as defined in the Criminal Code at 18 U.S.C. § 2510 (7) and thus are entitled, without court approval, to disclosure of the contents of intercepted communications and evidence derived therefrom pursuant to 18 U.S.C. § 2517(1). 673 F. Supp. at 1573-74. The court also ruled that the Committee's requests had satisfied the "particularized need" test prescribed by this Court for disclosure of grand jury records (id. at 1574) and the "good cause" test prescribed by 18 U.S.c. § 2518 (8) (b) for disclosure of electronic surveillance records (id. at 1572-73). The district court recognized the novelty to the allegations referred to the Committee at the time the House authorized an inquiry. On March 17, 1987, the Judicial Conference of the United States had certified to the House that "consideration of (Judge Hastings's] impeachment may be warranted" on allegations stemming from his indictment in 1981 and the trial that produced his acquittal in 1983. Later that month, an impeachment resolution was introduced and funds were allotted authorizing the Committee to conduct an impeachment inquiry into the certified allegations. The Committee subsequently sought and obtained a copy of the records of the Grand Jury that returned the indictment in 1981. In Request for Access to Grand Jury Materials, Grand Jury 81-1 (Miami) (Hastings), 833 F.2d 1438 (11th Cir. 1987) (special panel). The information that prompted the present requests was apparently supplied by the Justice Department at some time thereafter. See In re Grand Jury Proceedings (Hastings), No. 87-6070 (11th Cir. Mar. 14, 1987), slip op. at 2292-93 and 2293 n.13. 6 A copy of the district court order and its reported opinion are enclosed as Exhibits D and E. and importance of the case and stayed its decision to permit hibit D. The court of appeals extended the stay and established On March 14, 1988, the divided panel affirmed the district court's cause" tests (id. at 2289-91). The dissenting judge dis- agreed on both points. Id. at 2293-97. Judge Hastings asked the court of appeals to stay its appeals adopted the latter approach. 4. Exhibit B. Reasons Why A Further Stay Should Be Granted. Un- der established practice, as petitioner understands it, a the Justice must assess the nature and extent of the injury 7 In making this assessment, the Justices ordinarily give a. The Injury from Denial of a Further Stay It is clear that a stay is necessary to preserve the status quo. If a stay is denied and disclosure proceeds, the Court will be powerless to grant meaningful relief. The executive will have successfully parlayed evidence derived from electronic surveillance and the powers of a grand jury into an expanded legislative inquiry concerned with the conduct of a federal judge. And the law will be left with a powerful precedent to strengthen the executive's hand in the future. The executive will have the right to disclose confidential material to a legislative committee for use in an impeachment inquiry without prior judicial scrutiny pursuant to 18 U.S.C. § 2517 (1). If the disclosure provokes interest, the committee will be able to obtain any additional evidence the executive may have been able to gather by using the grand jury's powers upon a showing of mere pertinency. A more subtle but equally irreparable injury likely to stem from the denial of a stay will materialize when the Court considers the applicant's certiorari petition knowing that it is powerless to remedy the wrong done in any meaningful sense. Although the problems raised in this case will remain capable of repetition while evading review, considerations of relative mootness and political sensitivity almost certainly will influence how votes favoring review are cast if a stay is denied and disclosures are made. The necessary four votes are significantly less likely to be cast in favor of review if a stay is denied and that alone is an irreparable injury of significant dimensions to the applicant and his office. or deny a stay. See, e.a. Holtzman v. Schlesenger, 414 U.S 1304, 1314 (1973) (Marshall, J., in chambers). In the present case, however, that is not a factor because the court of appeals concluded that the decision was one that this Court should resolve for itself. 6 The fact that denial of a stay might substantially affect the "normal course of appellate review" and diminish the Court's ability to consider the merits has long been recognized as a significant and often dispositive factor. "When, as in this case, 'the normal course of appellate review might otherwise cause the case to become moot,' In re Bart, 82 S.Ct. 675, 676, 72 L.Ed.2d 767, 768 (1962) (Warren, C.J., in chambers), issuance of a stay is warranted.” rison v. Hudson, 468 U.S. 1301, 1302 (1984) (Burger, C.J., in chambers). Here, this factor, combined with irreparable injury to a federal judge and his office and enhanced by the novelty and importance of the questions presented, demonstrate nearly irresistibly the need and justification for a stay. 8 Gar b. The Likelihood of Review and Reversal. The Draft Petition identifies the questions presented (at i-iii) and develops reasons why review should be granted (at 19-33). It is submitted with this application to provide a basis upon which the necessary assessments of the likelihood of review and reversal may be made. Applicant believes, how ever, that those assessments may be further aided by a consideration of the potential consequence to all three branches of government that might follow if the judgment below is not reviewed and reversed. Those consequences can be illustrated by placing the present case in its broader con text. In the present case, the Justice Department obtained information from a court-authorized electronic surveillance suggesting that a federal judge may have improperly warned 8 The procedural history in Garrison and Bart illustrate the importance that the Justices have assigned this factor. In Garrison, certiorari was denied with no indication that any of the Justices voted to grant review. 469 U.S. 920 (1984). In Bart, the Chief Justice granted the stay in a case where the court of appeals had denied petitioner's motion for a stay. 82 S.Ct. at 675. an elected county official, an official who was not the target of its investigation. The Department did not simply submit that information to the chief judge of the circuit for such further investigation as he thought appropriate under the Act. Instead, the Department elected to pursue its own investigation into the judge's conduct and to use the powers of a grand jury to gather and record such evidence as the Department deemed pertinent to measure the judge's conduct. The grand jury did not return an indictment, and it is unclear whether the Department could properly have sought an indictment charging a violation of the criminal laws. The Justice Department eventually filed a complaint under the Judicial Councils Reform and Judicial Conduct and Disability Act of 1980 (the "Act") based upon the information it had developed. See, e.g. Slip op. at 2287. That complaint came a year after the Department had received the initial information and six months after the Department had employed a grand jury to gather and record such additional information as it thought pertinent. Thereafter, the chief judge appointed a special committee to investigate the Department's complaint and to submit a report and recommendation to the circuit council. The Department allowed proceedings under the Act to continue for a year before it decided to take further action. At that point, some two years after it had received what it had regarded as critical information, the Department elected to transmit its allegations to the House. Knowing that an investigation under the Act was proceeding within the judiciary, the Department transmitted information that prompted a House committee to expand an impeachment inquiry and to seek from the courts confidential electronic surveil 96-458, 94 Stat. 2035 (1980), codified as U.S.C. §§ 331, 332, 372 (c) 604 (h) (1982 & 8 |