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Thus, applying the requirements of rule 6(e) in this context, we hold, taking into account the doctrine of separation of powers, that a merely generalized assertion of secrecy in grand jury materials must yield to a demonstrated, specific need for evidence in a pending impeachment investigation. This conclusion is strengthened all the more when the "invading" branch acts to "serve broad public interests-- ... not in derogation of the separation of powers but to maintain their proper balance, ... or to vindicate the public interest in an ongoing [investigation]." Nixon v. Fitzgerald, 457 U.S. at 754, 102 S. Ct. at 2703 (citing Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 72 S. Ct. 863, 96 L. Ed. 1153 (1952) (Steel Seizure case)).
An additional reason for disclosing the grand jury materials to the Committee under rule 6(e) is found in the principles of comity that inform the relationships between the branches of government. Under a proper conception of the separation of powers, there should be a degree of cooperation between the legislative and judicial branches. The Constitution does not contemplate silence, or hostility, or a total separation of authority among the three branches of government. Instead, the framers contemplated a dynamic interaction among the branches, in which a system of checks and balances serves to prevent overreaching by any one branch. See Nixon v. Administrator of General Services, 433 U.S. at 442-43, 97 S. Ct. at 2789-90 (citing Steel Seizure case, 343 U.S. at 635, 72 S. Ct. at 870 (Jackson, J., concurring), and The Federalist No. 47 (J. Madison)).
Judge Hastings' argument is not based on the dispersion and sharing of power envisioned by the framers and by Montesquieu. It is based on a strict tripartite division of governmental territory unconnected by bridges, roads, rail, or any other means of intercourse. The framers did not contemplate that the branches would communicate by smoke signals from distant mountain tops. Rather, a number of functions were mixed between the legislative and the executive, e.g., the war power, the treaty power, the appointive power, the budgetary process, the spending power. In all of these areas of government, the two branches check each other and there must be cooperation if government is to function.
Judge Hastings' absolutist argument for strict separation is particularly inappropriate with respect to the function of grand juries. A mixing of functions and the need for intercourse between the executive and the judicial branch is clearly present in the operation of grand juries. The grand jury as an institution has one foot in the judicial branch and the other in the executive. The judicial branch has certain functions in instructing and controlling grand juries, and the executive submits evidence and makes recommendations to the grand jury. The two branches check each other in the enforcement of our system of criminal justice and thereby deter in part the possible abuse of power in the investigation and charging of criminal offenses. As in other areas where the framers allocated a function or institution to two branches of government, a high degree of cooperation is needed if the system is to function.
A prior instance of the type of cooperation contemplated by principles of interbranch comity is the cooperation extended to the judiciary by the House in litigation stemming from the Watergate scandal. In 1974, the District Court for the District of Columbia, in connection with the criminal prosecution of former Attorney General John W. Mitchell, subpoenaed certain evidence gathered by the Committee on the Judiciary in its inquiry into the impeachment of President Richard M. Nixon. The House adopted a resolution granting such access to the evidence as would not violate the privileges or constitutional powers of the House. See 3 Deschler's Precedents of the U.S. House of Representatives, ch. 14, Sec. 6.13. Although in the instant case the Committee requested rather than subpoenaed records, this Court should grant such access to the House as will not violate our privileges or constitutional powers. Deference to principles of comity does not entail simply giving the House any materials it requests. Comity is, however, a factor to be weighed in favor of disclosure when making the Rule 6(e) analysis.
The Committee asserts in its brief that "without full access to the grand jury materials, the public may not have confidence that the Congress considered all relevant evidence. To deny access to these materials would be nothing short of denying Congress--and the public--the right to information that may shed light on the truth." Public confidence in a procedure as political and public as impeachment is an important consideration justifying disclosure.
Judge Hastings also argues that the House's request is too broad. While requests for grand jury disclosure usually are limited to the testimony of specific witnesses, the Committee's request for disclosure of the entire grand jury record is appropriate in this case.
A unique aspect of the Committee's inquiry is its undertaking of what is essentially a de novo review of facts which have already been the subject of more traditional judicial proceedings. In order to conduct a full and fair investigation, the Committee needs to have access to all of the evidence which is available. The recommendation of the judicial branch concerning impeachment of Judge Hastings was based on access to the whole grand jury record, and that same access should not be denied Congress.
Judge Hastings argues that the Committee must rely on the report and record forwarded to it by the Judicial Conference unless it can show that the report and record are insufficient. This argument misapprehends the relationship between the Judicial Conference and the House of Representatives. Although the Judicial Councils Reform and Judicial Conduct and Disability Act provides for the transmission of the Judicial Conference's report and determination that impeachment may be warranted to the House of Representatives, it in no way limits the investigatory power of the House in impeachment proceedings. Such a holding would clearly violate separation of powers principles.
Judge Hastings also argues that the order granted disclosure to too many people. Judge King's order noted that the Committee intended to receive the materials in executive session "in accordance with the confidentiality procedures agreement attached hereto...." (App., p. 13). The confidentiality procedures provide for access by "Members of Congress." Judge Hastings contends that members of the Senate are not within the class of persons to whom disclosure could properly be approved in connection with an impeachment inquiry. He also contends that allowing senators to have access to the materials conflicts with the separation of the impeachment and removal powers between the House and the Senate, as well as undermining his interest in preserving his right to a fair trial in the Senate.
Our response to this argument is that by this order we grant disclosure only to the body that made the request: namely, the House of Representatives. The Constitution assigns the House and Senate separate functions and powers in the impeachment and removal process. The House holds the sole power of impeachment.3 It also holds investigative powers that are ancillary to its impeachment power. Only the House may decide whether to investigate, impeach, and prosecute public officials upon allegations that they have committed high crimes or misdemeanors in office. These powers are in the sole domain of the House and are not shared with or exercised by the Senate.
The Senate, on the other hand, holds the sole power to try impeachments and to order removal from office upon conviction. If the House approves and transmits articles of impeachment, the Senate must exercise its judicial power and convene as a court of impeachment. The Senate must then sit as judges and jurors to hear such evidence as is admissible and arguments as are made to decide the case.4
In seeking disclosure of the grand jury record, the Committee on the Judiciary based its request upon the investigative powers that the House holds ancillary to its power of impeachment. This court should not grant disclosure of the grand jury materials to persons other than those covered by this power. Because the sole discretion to decide whether articles of impeachment are to be approved lies with the House, the Senate has no constitutional role in that decision. The Senate has not requested disclosure, and our order is limited to the House.
The argument that our order should specifically require the Judiciary Committee to adopt confidentiality procedures that deny senators access to the materials is without merit. Judge Hastings acknowledges that once the materials are disclosed, the court cannot enforce the Committee's confidentiality procedures. Thus, even assuming that the court could withhold disclosure until procedures were adopted which limited access, Congress would be free to amend or abandon the procedures at any time.
