The United States of America, the Honorable Nicholas Deb. Katzenbach, Acting Attorney General of the United States, and the Honorable Robert E. Hauberg, United States Attorney for the Southern District of Mississippi v. Honorable W. Harold Cox, United States District Judge of the United States District Court for the Southern District of Mississippi, the Honorable Robert E. Hauberg, United States Attorney for the Southern District of Mississippi, and the Honorable Nicholas Deb. Katzenbach, Acting Attorney General of the United States v. Honorable W. Harold Cox, United States District Judge of the United States District Court for the Southern District of Mississippi

On October 22, 1964, an order of the United States District Court for the Southern District of Mississippi, signed by Harold Cox, a judge of that Court, was entered. The order, with caption and formal closing omitted, is as follows:

"THE GRAND JURY, duly elected, impaneled and organized, for the Southern District of Mississippi, reconvened on order of the Court at 9:00 A.M., October 21, 1964, in Court Room Number 2 in Jackson, Mississippi, for the general dispatch of its business. The grand jury was fully instructed as to their duties, powers and responsibilities and retired to the grand jury room number 538 in the Federal Building at Jackson to do its work. The United States Attorney (and one of his assistants) sat with the grand jury throughout the day on October 21 and explained in detail to the grand jury the perjury laws and the Court's construction of such laws for their information. The grand jury heard witnesses throughout the day on October 21, 1964. On the morning of October 22, 1964, the grand jury, through its foreman, made known to the Court in open court that they had requested Robert E. Hauberg, United States Attorney, to prepare certain indictments which they desired to bring against some of the persons under consideration and about which they had heard testimony, and the United States Attorney refused to draft or sign any such indictments on instructions of the Acting Attorney General of the United States; whereupon the Court ordered and directed said United States Attorney to draft such true bills or no bills as the grand jury may have duly voted and desired to report and to sign such instruments as required by law under penalty of contempt. The United States Attorney was afforded one hour within which to decide as to whether or not he would abide by the instructions and order of the Court in such respect. At the end of such time, the Court re-convened and the United States Attorney was specifically asked in open court as to whether or not he intended to conform with the order and direction of the Court in said respects whereupon the United States Attorney answered that he respectfully declined to do so on instructions from Nicholas deB. Katzenbach, Acting Attorney General. He was thereupon duly adjudged by the Court to be in civil contempt of the Court and was afforded an opportunity to make any statement which he desired to make to the Court before sentence; whereupon the United States Attorney reiterated his inability to comply with the order of the Court upon express and direct instructions from Nicholas deB. Katzenbach, Acting Attorney General of the United States.

"WHEREFORE, IT IS ORDERED AND ADJUDGED by the Court that Robert E. Hauberg, United States Attorney, is guilty of civil contempt of this Court and in the presence of the Court for his said refusal to obey its said order and he is ordered into custody of the United States Marshal to be confined by him in the Hinds County, Mississippi, jail, there to remain until he purges himself of this contempt by agreeing to conform to said order by performing his official duty for the grand jury as requested in the several (about five) pending cases before them on October 21 and October 22, 1964.

"IT IS FURTHER ORDERED by the Court that a citation issue to Nicholas deB. Katzenbach, Acting Attorney General of the United States, directing him to appear before this Court and show cause why he should not be adjudged guilty of contempt of this Court for his instructions and directions to the United States Attorney to disregard and disobey the orders of this Court in the respects stated.

"The United States Attorney requested a stay of enforcement of this order and further proceedings herein for five days after this date to enable him to apply to the United States Court of Appeals for the Fifth Circuit for a writ of prohibition and such request is granted; and these proceedings and enforcement of this order in its entirety is stayed for five days, subject to the further orders of the United States Court of Appeals on said application; and for the enforcement of all of which, let proper process issue."

The United States Attorney, Robert E. Hauberg, and the Acting Attorney General, Nicholas deB. Katzenbach, have appealed from the order and they, joined by the United States, seek a writ of prohibition against the District Judge from enforcing the Court's order, and from asserting jurisdiction to require the Attorney General or the United States Attorney "to institute criminal prosecutions or to take any steps in regard thereto." The facts recited in the order are uncontroverted. No further facts are essential to a decision of the issues before this Court. Although the issues here presented arose, in part at least, as an incident of a civil rights matter, no civil rights questions are involved in the rather broad inquiry which we are called upon to make.

The constitutional requirement1 of an indictment or presentment2 as a predicate to a prosecution for capital or infamous crimes has for its primary purpose the protection of the individual from jeopardy except on a finding of probable cause by a group of his fellow citizens, and is designed to afford a safeguard against oppressive actions of the prosecutor or a court. The constitutional provision is not to be read as conferring on or preserving to the grand jury, as such, any rights or prerogatives. The constitutional provision is, as has been said, for the benefit of the accused. The constitutional provision is not to be read as precluding, as essential to the validity of an indictment, the inclusion of requisites which did not exist at common law.

Traditionally, the Attorney for the United States had the power to enter a nolle prosequi of a criminal charge at any time after indictment and before trial, and this he could have done without the approval of the court or the consent of the accused. It may be doubted whether, before the adoption of the Federal Rules of Criminal Procedure, he had any authority to prevent the return of an indictment by a grand jury. There would be no constitutional barrier to a requirement that the signature of a United States Attorney upon an indictment is essential to its validity.

It is now provided by the Federal Rules of Criminal Procedure that the Attorney General or the United States Attorney may by leave of court file a dismissal of an indictment. Rule 48(a) Fed.Rules Crim.Proc. 18 U.S.C.A. In the absence of the Rule, leave of court would not have been required. The purpose of the Rule is to prevent harassment of a defendant by charging, dismissing and re-charging without placing a defendant in jeopardy. Woodring v. United States, 8th Cir. 1963, 311 F.2d 417. Rule 7 eliminates the necessity for the inclusion in an indictment of many of the technical and prolix averments which were required at common law, by providing that the indictment shall be a plain, concise and definite written statement of the essential facts constituting the offense charged. The Rule also provides that "It shall be signed by the attorney for the government." Rule 7(c) Fed.Rules Crim.Proc. 18 U.S.C.A.

The judicial power of the United States is vested in the federal courts,3 and extends to prosecutions for violations of the criminal laws of the United States. The executive power is vested in the President of the United States,4 who is required to take care that the laws be faithfully executed.5 The Attorney General is the hand of the President in taking care that the laws of the United States in legal proceedings and in the prosecution of offenses, be faithfully executed.6 The role of the grand jury is restricted to a finding as to whether or not there is probable cause to believe that an offense has been committed. The discretionary power of the attorney for the United States in determining whether a prosecution shall be commenced or maintained may well depend upon matters of policy wholly apart from any question of probable cause.7 Although as a member of the bar, the attorney for the United States is an officer of the court, he is nevertheless an executive official of the Government, and it is as an officer of the executive department that he exercises a discretion as to whether or not there shall be a prosecution in a particular case. It follows, as an incident of the constitutional separation of powers, that the courts are not to interfere with the free exercise of the discretionary powers of the attorneys of the United States in their control over criminal prosecutions.8 The provision of Rule 7, requiring the signing of the indictment by the attorney for the Government, is a recognition of the power of Government counsel to permit or not to permit the bringing of an indictment. If the attorney refuses to sign, as he has the discretionary power of doing, we conclude that there is no valid indictment. It is not to be supposed that the signature of counsel is merely an attestation of the act of the grand jury. The signature of the foreman performs that function. It is not to be supposed that the signature of counsel is a certificate that the indictment is in proper form to charge an offense. The sufficiency of the indictment may be tested before the court. Rather, we think, the requirement of the signature is for the purpose of evidencing the joinder of the attorney for the United States with the grand jury in instituting a criminal proceeding in the Court. Without the signature there can be no criminal proceeding brought upon an indictment. Substantial compliance rather than technical exactness meets the requirement of the rule. There seems to be no authority for the statement that the absence of a signature is not fatal. 4 Barron & Holtzoff Federal Practice & Procedure 61, § 1913.

If it were not for the discretionary power given to the United States Attorney to prevent an indictment by withholding his signature, there might be doubt as to the constitutionality of the requirement of Rule 48 for leave of court for a dismissal of a pending prosecution.9

Because, as we conclude, the signature of the Government attorney is necessary to the validity of the indictment and the affixing or withholding of the signature is a matter of executive discretion which cannot be coerced or reviewed by the courts, the contempt order must be reversed. It seems that, since the United States Attorney cannot be required to give validity to an indictment by affixing his signature, he should not be required to indulge in an exercise of futility by the preparation of the form of an indictment which he is unwilling to vitalize with his signature. Therefore he should not be required to prepare indictments which he is unwilling and under no duty to sign.

Judges Tuttle, Jones, Brown and Wisdom join in the conclusion that the signature of the United States Attorney is essential to the validity of an indictment. Judge Brown, as appears in his separate opinion, is of the view that the United States Attorney is required, upon the request of the grand jury, to draft forms of indictments in accordance with its desires. The order before us for review is in the conjunctive; it requires the United States Attorney to prepare and sign. A majority of the court, having decided that the direction to sign is erroneous, the order on appeal will be reversed.

So much of the order of the district court as adjudges the United States Attorney for the Southern District of Mississippi to be in contempt is a final order, appealable as such, and for the reasons here assigned, is reversed. That part of the order of the district court as would require the Acting Attorney General to show cause why he should not be held in contempt is interlocutory and not appealable, and the appeal of the Acting Attorney General will be dismissed.

There remains for our consideration and disposition the petition of the United States, the Acting Attorney General and the United States, for a Writ of Prohibition to prohibit the Respondent District Judge from enforcing the order. The reversal of the order as to the United States Attorney makes unnecessary, so far as he is concerned, any consideration of the application for a Writ of Prohibition. There has been no citation issued for service on the Attorney General requiring him to show cause. He has not yet been put in jeopardy. Our disposition of the appeal makes it improbable that such citation will be issued and served. It does not appear that there is any necessity at this time for the issuance of the discretionary Writ of Prohibition. The petition will be denied.

We are of the opinion that whenever a United States Attorney is under a legal duty which he has been directed to perform by a valid order of court, his refusal to perform such duty and comply with such order will not be justified or excused by instructions from the Attorney General to disregard his duty and disobey the order. Thus the way is open for relief if a further order is entered with respect to the rendering of assistance to the grand jury by the United States Attorney in the preparation of indictments.

The respondent-appellee has challenged the right of the United States to join in the petition for a Writ of Prohibition. We find it unnecessary to pass on this question.

The Court's mandate will issue forthwith. Appeal dismissed as to Katzenbach, Acting Attorney General. Order on appeal reversed as to Hauberg, United States Attorney. Petition for writ of prohibition denied.

RIVES, GEWIN and GRIFFIN B. BELL, Circuit Judges (concurring in part and dissenting in part):

The question presented arose pointedly when the foreman of the grand jury, in the presence of the grand jurors in open court, requested help from the court as follows:

"BY FOREMAN COWAN:

"Judge Cox, we have under consideration three different matters, two we have concluded, the third is in the process of being concluded. On yesterday we asked Mr. Hauberg, the United States District Attorney, to assist us in preparing true bills in the manner that we have been served here before handing us these bills. Mr. Hauberg said that he could not do so without permission being given from the Department in Washington. We concluded yesterday afternoon by asking him to secure that permission and to have those true bills ready for us this morning. Mr. Hauberg now tells us that he has been instructed on all three matters not so to do. In other words we are at the position now in the event that we should vote indictment why we don't know what to do with it after that may or may not be accomplished." (Emphasis added.)

The court then asked the District Attorney if he wished to respond. The District Attorney stated that he had been instructed by the Acting Attorney General not to prepare the indictments. The record discloses that the grand jury had heard evidence about certain matters which the Attorney General's office had already investigated and determined did not warrant prosecution. The grand jury had also heard evidence about matters of which the Attorney General had no knowledge and had made no investigation.1 The District Attorney disclosed to the court that the Acting Attorney General had directed him to request the FBI to investigate such matters, but that he had likewise been directed not to proceed in assisting the grand jury. In this colloquy the court stated to the District Attorney that the court considered the grand jury to be within its province in hearing the matters under consideration and in passing upon them pursuant to their oath. Accordingly, the court directed the District Attorney to disregard his instructions from the Department of Justice and to serve the grand jury by preparing the true bills as had been requested. The court then recessed and requested the District Attorney to communicate further with the Department of Justice and to advise that Department of the instructions of the court. After the recess, the District Attorney reported to the court that he had conferred by telephone with the Acting Attorney General who instructed him as follows:

"I have been instructed `As United States Attorney neither you nor any of your assistants are authorized to prepare or to sign indictments in the matters being heard on October 21 and 22 by the Grand Jury and I direct you and your assistants to refrain from doing so in your official capacity. If the Court should direct you to disregard my instructions on pain of contempt you should inform the Court that the Department will immediately apply to the Court of Appeals for a writ prohibiting such an order. You should request the Court for a stay of further proceedings pending the application and decision with respect to the writ of prohibition."

The court further inquired whether the District Attorney was refusing to obey the court's order to prepare true bills and sign the same as requested by the grand jury "in these cases presently pending and being considered by the Grand Jury." The District Attorney stated to the court as follows:

"If the Court please, because of instructions I have received I most humbly and respectfully have to refuse to comply."

Thus the basic issue before this Court is whether the controlling discretion as to the institution of a felony prosecution rests with the Attorney General2 or with the grand jury. The majority opinion would ignore the broad inquisitorial powers of the grand jury, and limit the constitutional requirement of Amendment V to the benefit of the accused.3

"The grand jury serves two great functions.³⁶⁰ One is to bring to trial persons accused of crime upon just grounds. The other is to protect persons against unfounded or malicious prosecutions by insuring that no criminal proceeding will be undertaken without a disinterested determination of probable guilt. The inquisitorial function has been called the more important.³⁶¹

"360. In re Charge to Grand Jury, C.C.C. Cal.1872, 30 Fed.Cas. pages 992, 993, No. 18,255, dissenting opinion of Harlan, J., in Hurtado v. People of State of California, 1884, 110 U.S. 516, 538, 555-556, 4 S.Ct. 111, 28 L.Ed. 232; Ex parte Bain, 1887, 121 U.S. 1, 11, 7 S.Ct. 781, 786, 30 L.Ed. 849.

"361. In re Grand Jury Proceedings, D. C.E.D.Pa.1933, 4 F.Supp. 283, 284."

Orfield, The Federal Grand Jury, 22 F. R.D. 343, 394.

In the case last cited by Professor Orfield, Judge Kilpatrick said:

"The inquisitorial power of the grand jury is the most valuable function which it possesses today and, far more than any supposed protection which it gives to the accused, justifies its survival as an institution. As an engine of discovery against organized and far-reaching crime, it has no counterpart. Policy emphatically forbids that there should be any curtailment of it except in the clearest cases."

In re Grand Jury Proceedings, D.C.E.D. Pa.1933, 4 F.Supp. 283, 284.

The grand jury possesses plenary and independent inquisitorial powers. The Supreme Court has held that an Executive Order and a Circular Letter of the Department of Justice requiring approval of the Attorney General before any evidence could be presented in certain cases "was not intended to curtail or limit the well-recognized power of the grand jury to consider and investigate any alleged crime within its jurisdiction. See United States v. Thompson, 251 U.S. 407, 413-415, 40 S.Ct. 289, 291-292, 64 L.Ed. 333; Blair v. United States, 250 U.S. 273, 282, 39 S.Ct. 468, 471, 63 L.Ed. 779; Hale v. Henkel, 201 U.S. 43, 61-66, 26 S.Ct. 370, 373-376, 50 L.Ed. 652; Frisbie v. United States, 157 U.S. 160, 163, 15 S.Ct. 586, 587, 39 L.Ed. 657." Sullivan v. United States, 1954, 348 U.S. 170, 173, 75 S.Ct. 182, 184, 99 L.Ed. 210.

A federal grand jury has the unquestioned right to inquire into any matter within the jurisdiction involving violations of law and to return an indictment if it finds a reasonable probability that a crime has been committed. This it may do at the instance of the court, the District Attorney, the Attorney General or on its own initiative, from evidence it may gather or from knowledge of its members.4

The majority holds that: "The provision of Rule 7, requiring the signing of the indictment by the attorney for the Government, is a recognition of the power of Government counsel to permit or not to permit the bringing of an indictment."

With deference we call attention that no authority is cited in support of that holding and we submit that it ignores the history of the grand jury and of the Rules of Criminal Procedure. Professor Orfield, himself a member of the Advisory Committee on Rules of Criminal Procedure, has preserved for us the history of Rule 6, captioned "The Grand Jury." See 22 F.R.D. 346-357. There is nothing in that history, nor in the succeeding Rule 7, which would authorize Government counsel to so radically reduce the powers of the grand jury. To the contrary, Professor Orfield points out that before the federal criminal rules, "It was the practice of the United States Attorney or his assistant to sign the indictment and for the foreman to sign below the endorsement `A True Bill' on the face of it." 22 F.R.D. 377, 378. Rule 7 simply continued the already existing practice. Professor Orfield further states, "When the United States Attorney does sign, this `merely attests the action of the grand jury.'³⁵⁷

"357. Crowley v. United States, 1904, 194 U.S. 461, 475, 24 S.Ct. 731, 737, 48 L.Ed. 1075."

22 F.R.D. at 394. In the case cited by Professor Orfield, Crowley v. United States, 1903, 194 U.S. 461, 475, 24 S.Ct. 731, 737, the Supreme Court said:

"The indictment embodies charges made by grand jurors, and the signature of the United States Attorney merely attests the action of the grand jury, whereas an information rests upon the responsibility of the attorney representing the government, and imports an investigation of the facts by him in his official capacity." (Emphasis added.)

The finding and return of the indictment are the acts of the grand jury. When a United States Attorney prepares and signs an indictment, he does not adopt, approve, or vouch for the charge, nor does he institute a criminal prosecution.5

The United States Attorney cannot, except in an advisory capacity, inquire into the merits of whether indictments should be found and returned in particular cases being considered by the grand jury. Only the grand jurors themselves have that power. It would be grossly wrong for it to be usurped. Moreover, that is practically impossible, because "no person other than the [grand] jurors may be present while the grand jury is deliberating or voting." Rule 6(d), F.R.Crim.P. The responsibility of finding and returning an indictment rests solely upon the grand jurors.

The majority holds, "If the attorney [that is the attorney for the Government] refuses to sign, as he has the discretionary power of doing, we conclude there is no valid indictment." The only authority cited for that holding is 4 Barron & Holtzoff, Federal Practice & Procedure 61, § 1913, which, in turn, cites Wheatley v. United States, 4 Cir. 1946, 159 F.2d 599, where the rule was well stated as follows by Judge Soper, Judges Parker and Dobie concurring:

"It has been held that the signature of the prosecuting attorney is no part of the indictment and is necessary only as evidence of the authenticity of the document; and it has also been held that the improper signing of an indictment is not such a defect as would invalidate the instrument; In re Lane, 135 U.S. 443, 449, 10 S.Ct. 760, 34 L.Ed. 219; Miller v. United States, 6 Cir., 300 F. 529, 536, certiorari denied, 266 U.S. 624, 45 S.Ct. 123, 69 L.Ed. 474; King v. United States, 5 Cir., 279 F. 103, 104; United States v. McAvoy, C.C.N.Y., 26 Fed.Cas. (No. 15,654) 1044, 1045."

We submit that the rule is well settled that the absence of the signature of the United States Attorney from an indictment does not invalidate a conviction based on it.6

Rule 7(c), F.R.Crim.P., provides that the indictment "shall be signed by the attorney for the government."7 Rule 6 (c) requires that the foreman of the grand jury also "shall sign all indictments."8 An indictment may be found upon the concurrence of twelve or more jurors. It must be returned by the grand jury to a judge in open court. Such return is not adequate authentication. Rule 6(f). Professor Orfield states that, "Indorsement is desirable as sometimes grand juries return indictments which they have not found." Orfield, "The Federal Grand Jury," 22 F.R.D. 343, 377. The signature of the United States Attorney is a mere authentication that the indictment is the act of the grand jury.

It is not for us to pass upon the wisdom of requiring such authentication. It is enough that the law provides for the indictment to be authenticated by the signature of the attorney for the government. The United States Attorney is an officer of the court, and may be required to perform this purely ministerial act. There are few legal documents which bear more awful import and potential effect upon liberty and life than does an indictment. The importance of an indictment makes rational the triple authentication which the rules have seen fit to require; viz., that it be signed both by the attorney for the government and by the foreman, and that it be returned by the grand jury to a judge in open court. All doubt will thus be removed as to whether the indictment is really the act of the grand jury.

The Attorney General himself takes the position that the grand jury has the power to return a valid indictment without the signature of the District Attorney, but contends that such an indictment does not require the defendant charged therein to answer or plead to it, or to appear and give bond. Such an indictment, according to the Attorney General's contentions, is innocuous so far as the defendant is concerned, unless and until the District Attorney or one of his assistants signs. In the meantime it is conceded that such an indictment would lie in court inactive and ineffective. Statutes of limitations would not be tolled by the return of such an indictment according to the Attorney General. He asserts that only the signature of the District Attorney (or his authorized assistants) gives the indictment life. Such argument is used to support the position that the action of the Department of Justice or the District Attorney in refusing to prepare or sign the indictment in no way impairs, impedes or influences the action of the grand jury. The Attorney General suggests that the grand jury can obtain assistance to a degree from the judge, and that some "outside person" may assist the grand jury in preparing the indictment, but that such "outside person" has no authority to sign the indictment and no authority to enter the grand jury room. In our view, the position of the Attorney General is untenable. We subscribe fully to the following assertion from the exhaustive and scholarly opinion of Judge Fee in United States v. Smyth, subsequently cited with approval by the Supreme Court in Sullivan v. United States, supra.

"The grand jury is similar to the trial jury, who may convict notwithstanding positive instructions to acquit and who may pardon notwithstanding a direction to find guilty. Unquestionably, the grand jury are under no necessity to follow the orders of the prosecutor. They can present an indictment whether he will or no."9 (104 F.Supp. 283, 294.)

The Attorney General insists that the prosecution of offenses against the United States is an executive function of the Attorney General deraigned from the executive power vested in the President to "take care that the laws be faithfully executed." U.S.Const. art. II, § 3. The short answer is that one of the most fundamental and important of the laws so to be faithfully executed is the clear and explicit provision of the Fifth Amendment to the Constitution that "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury * * *."

The Fifth Amendment adopted the grand jury as it had then been developed in England over the course of many centuries, and made it a part of the fundamental law of the United States for the institution of prosecutions for crime.10 Thus the grand jury originated long before the doctrine of separation of powers was made the constitutional basis of our frame of government. The same Constitution which separated the three powers of government adopted the institution of the grand jury. It follows that no nice distinction need be drawn as to whether the grand jury may perform some function of the executive department. As well said by the Seventh Circuit:

"While the grand jury is, in a sense, a part of our court system, when exercising its traditional functions it possesses an independence which is unique. Its authority is derived from none of the three basic divisions of our government, but rather directly from the people themselves."

In re April 1956 Term Grand Jury, 1956, 239 F.2d 263, 269.

Moreover, in point of law and reality, the plenary inquisitorial power of the grand jury does not impinge in the slightest upon the executive function of the Attorney General to prosecute or not to prosecute offenses against the United States, for as soon as the indictment is returned, "The Attorney General or the United States Attorney may by leave of court file a dismissal * * *." Rule 48 (a), F.R.Crim.P. The majority express the view that their holding of a discretionary power of the United States Attorney to prevent an indictment is needed to remove some doubt as to the constitutionality of the requirement of Rule 48 for leave of court for a dismissal of a pending prosecution. We do not agree that any such doubt exists. Rule 48(a) was primarily intended to authorize the court to protect defendants and not to confer prosecutive functions upon the court. Judge Weinfield in United States v. Greater Blouse, Skirt & Neckwear Contractors Ass'n, S.D.N.Y.1964, 228 F.Supp. 483, 489-490, well described the situation which might arise after indictment where the Attorney General or the United States Attorney does not wish to prosecute and where the district court denies dismissal:

"The Attorney General is the head of the Department of Justice, a part of the Executive branch of the Government. Even were leave of Court to the dismissal of the indictment denied, the Attorney General would still have the right to adhere to the Department's view that the indictment cannot be supported by proof upon a trial of the merits, and accordingly, in the exercise of his discretion, decline to move the case for trial. The Court in that circumstance would be without power to issue a mand