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Court of Appeals for the Fifth Circuit • 1965

United States v. Cox

342 F.2d 167

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Takeaway

In short, this case holds that federal prosecutors, not courts or grand juries, retain executive discretion to withhold the signature necessary to initiate a valid federal indictment, although a separate majority recognized a limited duty to help the grand jury draft indictment forms.

Background

A federal grand jury in the Southern District of Mississippi asked United States Attorney Robert Hauberg to prepare indictments in matters it had investigated, including possible perjury by witnesses in a voting-rights case. Acting Attorney General Nicholas Katzenbach instructed Hauberg not to prepare or sign indictments. The Department had concluded that at least one proposed perjury prosecution lacked sufficient legal and factual support, and it had not yet investigated other matters before the grand jury.

District Judge W. Harold Cox ordered Hauberg to prepare whatever true bills or no bills the grand jury voted and to sign the resulting instruments. Hauberg respectfully refused, following the Acting Attorney General's instructions. Judge Cox held Hauberg in civil contempt, ordered him confined until he complied, and issued a show-cause citation to Katzenbach.

Hauberg and Katzenbach appealed. Along with the United States, they also sought a writ of prohibition preventing Judge Cox from enforcing the order or requiring the Attorney General or United States Attorney to institute criminal prosecutions.

Issues

Issue #1

Whether a district court may compel a United States Attorney to sign an indictment desired by a grand jury.

Holding

No. Under Rule 7(c), the government attorney's signature is essential to a valid federal indictment, and the decision to sign or withhold that signature is an unreviewable exercise of executive prosecutorial discretion.

Reasoning

The Fifth Amendment's indictment requirement principally protects an accused person from being put in jeopardy without a fellow citizens' finding of probable cause. It does not confer on the grand jury an independent constitutional right to force the initiation of a prosecution.

The Constitution assigns judicial power to the courts but executive power, including the duty to execute federal law, to the President. The Attorney General acts for the President in federal litigation and criminal enforcement, and United States Attorneys exercise prosecutorial discretion as executive officials even though they are also officers of the court.

A grand jury determines whether probable cause exists, but the decision whether to commence or maintain a prosecution can rest on policy considerations beyond probable cause. Separation of powers therefore bars courts from controlling the prosecutor's discretionary decision whether to bring a criminal case.

Rule 7(c)'s requirement that an indictment be signed by the attorney for the government is not merely a technical attestation; the foreman's signature already authenticates the grand jury's act. The court read the prosecutor's signature as evidence that the Executive has joined the grand jury in instituting a criminal proceeding. Without it, there is no valid indictment.

Issue #2

Whether a United States Attorney must provide a grand jury with assistance in drafting an indictment form that the grand jury wishes to return.

Holding

Yes, a separate majority of the court concluded that the United States Attorney has a duty, when requested by the grand jury, to prepare proposed indictment forms in accordance with its wishes; but that conclusion did not save the challenged order because the order inseparably required both preparation and signing.

Reasoning

Judge Brown concluded, and Judges Rives, Gewin, and Bell agreed, that the prosecutor may be required to act as the grand jury's legal scrivener. A grand jury needs legal assistance to state the elements of an offense with the precision required for a formal indictment, and grand-jury secrecy makes private outside counsel an impractical substitute.

The court's order, however, required Hauberg both to prepare and to sign the instruments. Because a majority held that the court could not compel the signature, the conjunctive order was erroneous and had to be reversed as entered.

The court emphasized that its ruling did not excuse a United States Attorney from every court-ordered legal duty. If a future valid order requires assistance that does not invade the Executive's discretion to decide whether to initiate prosecution, the Attorney General's contrary instructions would not justify disobedience.

Issue #3

Whether the civil-contempt adjudication against the United States Attorney was valid.

Holding

No. The contempt order was reversed because it was based on an invalid command requiring Hauberg to sign indictments.

Reasoning

A contempt sanction cannot stand when the underlying order exceeds the court's authority. Since Hauberg could not lawfully be compelled to give an indictment validity by signing it, his refusal to comply with the combined prepare-and-sign order could not support the civil-contempt adjudication.

The contempt judgment against Hauberg was final and therefore appealable, allowing the court to review and reverse it directly.

Issue #4

Whether the Acting Attorney General could immediately appeal the show-cause citation for possible contempt.

Holding

No. The appeal as to Acting Attorney General Katzenbach was dismissed because the show-cause portion of the order was interlocutory.

Reasoning

The district court had only directed that a citation issue requiring Katzenbach to show cause why he should not be held in contempt. No citation had yet been served, and Katzenbach had not been adjudged in contempt or otherwise placed in jeopardy.

Because the court's resolution of Hauberg's appeal made a further contempt proceeding against Katzenbach unlikely, there was no final order against him for the court of appeals to review.

Issue #5

Whether a writ of prohibition should issue against the district judge.

Holding

No. The petition was denied because no present necessity justified this extraordinary discretionary remedy.

Reasoning

Reversal of the order against Hauberg made prohibition unnecessary as to him. As to Katzenbach, no contempt citation had been served, and there was no concrete imminent action requiring intervention.

The court therefore declined to use prohibition to decide hypothetical future disputes over the prosecutor's assistance to the grand jury. It also found it unnecessary to decide whether the United States could properly join the petition.

Concurrences

Judge Brown

Reasoning

Judge Brown agreed that a prosecutor cannot be compelled to sign an indictment. In his view, the signature is the consequential final act that initiates a prosecution, and responsibility for deciding not to prosecute must remain with an executive official who is politically accountable and able to weigh matters such as national security, enforcement priorities, and the practical demands of criminal administration.

He disagreed, however, with the proposition that the prosecutor could refuse all aid to a grand jury. Once a grand jury decides that it wishes to report a true bill, it needs a lawyer to put its charge into legally adequate form. The court may therefore require the United States Attorney to prepare the indictment, even though it may not require the attorney to sign it.

This middle position preserves the grand jury's ability to express its considered accusation while preserving executive control over whether an effective prosecution begins. It also brings any conflict between the grand jury and the Executive into public view, where political responsibility for a decision not to prosecute can be identified.

Judge Wisdom

Reasoning

Judge Wisdom agreed that neither the grand jury nor the court could compel the prosecutor to prepare and sign an indictment that the Executive had decided not to pursue. Historically, he explained, a presentment was a grand jury's own accusation or report, while an indictment was a written bill preferred to the grand jury by the government and then found to be a true bill. The grand jury's inquisitorial authority therefore did not entail plenary power to initiate a prosecution on its own terms.

He distinguished the grand jury's protective function from its accusatory function. The Fifth Amendment strongly safeguards the grand jury's role as a shield against unjust governmental accusations, but its accusatory power must be checked by the Executive's discretion not to prosecute. The grand jury could still investigate, hear witnesses, and make a presentment or report in open court.

The facts reinforced the need for executive discretion. The proposed prosecutions involved Black witnesses in a Mississippi voting-rights dispute, and the Attorney General had concluded after investigation that the perjury charge was legally unsupported and that prosecution could undermine national civil-rights policy. Judge Wisdom concluded that such a conflict between local pressure and national policy must be resolved by the Attorney General rather than by a local grand jury.

Dissents

Judge Rives

Reasoning

Judge Rives, joined by Judges Gewin and Bell, agreed that Katzenbach's appeal should be dismissed and that prohibition should be denied, but would have affirmed Hauberg's contempt adjudication. They viewed the central question as whether the Attorney General or the grand jury has controlling discretion to institute a felony prosecution, and they concluded that the grand jury retains that power.

In their view, the federal grand jury has broad, independent inquisitorial authority to investigate offenses within its jurisdiction and to return an indictment upon finding probable cause. The Fifth Amendment preserved that institution not only to protect the accused but also to enable citizens to investigate and accuse wrongdoing, including wrongdoing the Executive may prefer not to pursue.

They rejected the majority's interpretation of Rule 7(c). The prosecutor's signature, they argued, has traditionally served only to authenticate the grand jury's act, much like the foreman's signature, and precedent treated the absence or irregularity of the prosecutor's signature as nonfatal. It does not represent the prosecutor's adoption of the accusation or a discretionary executive decision to commence the prosecution.

The dissenters would require the United States Attorney both to draft and to sign an indictment that the grand jury has decided to return. That duty would make the grand jury's decision effective without requiring the prosecutor to endorse its factual judgment. After return of the indictment, the Attorney General could still exercise prosecutorial discretion by seeking dismissal under Rule 48(a) or by declining to go forward.

Requiring return of the indictment before the Executive declines prosecution would make the disagreement public and preserve the grand jury's constitutional role. By contrast, allowing the Attorney General to block an indictment in secret could allow the statute of limitations to run, permit an accused to flee, and effectively reduce the grand jury's indictment power to an ineffectual presentment.