United States v. Cox
342 F.2d 167 (1965)
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Rule of Law:
Under the constitutional principle of separation of powers, the decision to initiate a criminal prosecution is an executive function, and a federal court cannot compel a United States Attorney to sign an indictment requested by a grand jury.
Facts:
- A federal grand jury in the Southern District of Mississippi investigated potential perjury by two Black individuals who had testified in a federal voting rights lawsuit.
- The grand jury heard testimony and determined there was probable cause to indict the two individuals.
- The grand jury's foreman, in open court, informed the presiding judge that the grand jury had requested United States Attorney Robert E. Hauberg to prepare the indictments.
- Hauberg refused to draft or sign the indictments.
- Hauberg stated that his refusal was based on express instructions from the Acting Attorney General of the United States, Nicholas deB. Katzenbach.
- The Department of Justice had previously investigated the matter and concluded that the evidence was insufficient to sustain a perjury conviction.
Procedural Posture:
- The United States District Court for the Southern District of Mississippi ordered United States Attorney Robert E. Hauberg to prepare and sign indictments as requested by the federal grand jury.
- When Hauberg respectfully declined to comply based on instructions from the Acting Attorney General, the District Court found him in civil contempt of court.
- The District Court also issued an order for Acting Attorney General Nicholas deB. Katzenbach to appear and show cause why he should not also be held in contempt.
- The District Court stayed enforcement of its contempt order for five days to permit an appeal.
- Hauberg and Katzenbach appealed the order to the United States Court of Appeals for the Fifth Circuit and also petitioned for a writ of prohibition to prevent the District Court from enforcing its order.
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Issue:
Does a federal district court have the authority to compel a United States Attorney, under penalty of contempt, to prepare and sign an indictment requested by a federal grand jury?
Opinions:
Majority - Jones, J.
No. A federal district court does not have the authority to compel a United States Attorney to sign an indictment. The power to prosecute is an exclusively executive function, vested in the President and delegated to the Attorney General and U.S. Attorneys. The requirement in Federal Rule of Criminal Procedure 7(c) that an indictment be signed by the attorney for the government is not a mere ministerial act of attestation; rather, it is the mechanism by which the executive branch exercises its discretion to initiate a prosecution. Forcing a prosecutor to sign an indictment would violate the constitutional separation of powers by allowing the judiciary to interfere with the discretionary powers of the executive. Because the court cannot compel the signature that gives an indictment legal validity, it also cannot compel the futile act of preparing the document.
Dissenting - Rives, Gewin, and Bell, JJ.
Yes. A federal district court has the authority to compel a United States Attorney to both prepare and sign an indictment. The Fifth Amendment grants the grand jury a constitutional role and independent inquisitorial powers that should not be subject to an executive veto. The U.S. Attorney's signature is a ministerial act of authentication, confirming the grand jury's action, not a substantive approval of it. The proper check on the grand jury's power by the executive branch occurs after the indictment is returned, when the U.S. Attorney can move to dismiss the indictment in open court under Rule 48(a), thereby ensuring public accountability rather than allowing a secret, unilateral refusal to prosecute.
Concurring - Brown, J.
No, as to signing; Yes, as to preparing. While a court cannot compel the U.S. Attorney to sign an indictment, as that final act is a discretionary exercise of executive power, it can compel the U.S. Attorney to prepare the indictment. The prosecutor has a ministerial duty to serve as the grand jury's 'legal scrivener.' Requiring the preparation of the formal indictment allows the grand jury to officially report its conclusions and publicly reveals the conflict between the grand jury and the executive, thereby fixing political responsibility for the decision not to prosecute.
Concurring - Wisdom, J.
No. A court cannot compel the U.S. Attorney to either prepare or sign an indictment. Historically, an 'indictment' required a bill to be preferred by the Crown (the executive), while the grand jury's independent accusation was a 'presentment.' The prosecutor's discretion not to prosecute is a critical check and balance on the grand jury's accusatorial power, especially in cases where community hostility may jeopardize justice, such as this case arising from a civil rights dispute. The decision of whether to prosecute involves complex matters of national policy that are appropriately left to the unfettered discretion of the Attorney General.
Analysis:
This case firmly establishes the doctrine of prosecutorial discretion as a core executive power, shielded from judicial coercion by the separation of powers. It clarifies that the prosecutor's signature on an indictment is a substantive, discretionary act that initiates prosecution, not a mere ministerial formality. The decision creates a nearly absolute barrier to judicial review of a prosecutor's decision not to charge. However, the fractured opinions, with a majority forming to require prosecutors to at least prepare indictments upon request, leave some ambiguity about the scope of the prosecutor's ministerial duties to the grand jury.
