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United States v. Cox

Citation. 342 F.2d 167, cert denied, sub nom. Cox v. Hauberg, 381 U.S. 935 (1965)
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Brief Fact Summary.

A United States Attorney was found guilty of civil contempt for refusing a court’s order to prepare indictments requested by a grand jury.

Synopsis of Rule of Law.

A government attorney has executive discretion to decide whether or not to prepare an indictment or prosecute a case.


A federal grand jury requested that Hauberg, the United States Attorney for the Southern District of Mississippi, prepare indictments against certain individuals. Acting on the advice of the Acting Attorney General of the United States, Katzenbach, Hauberg refused. Judge Cox, a  District Court judge, ordered Hauberg to comply with the grand jury request. Hauberg again refused, at the direction of Katzenbach. Judge Cox then entered an order finding Hauberg guilty of civil contempt and ordering Katzenbach to appear and show cause why he should not also be found guilty of contempt for advising Hauberg not to prepare the ordered indictments. Hauberg and Katzenbach appealed.


Does a United States Attorney have discretion to refuse to prepare an indictment requested by the grand jury?


(Jones, J.) Yes. A government attorney has executive discretion to decide whether or not to prepare an indictment or prosecute a case. The Constitution requires an indictment or presentment as a precursor to prosecution for a capital or infamous crime in order to protect an individual from prosecution without probable cause. This is a safeguard against arbitrary actions by prosecutors or courts, but is not meant to confer any rights on the grand jury. Under the Federal Rules of Civil Procedure, the Attorney General or United States Attorney can dismiss an indictment, in order to prevent the harassment of a defendant. The grand jury’s role is to determine whether or not probable cause exists to believe an offense has been committed, not to make discretionary decisions as to who will be prosecuted. That discretion belongs to the attorney for the United States as policy matters and other circumstances outside of a determination of probable cause may lead the United States to decline to prosecute an individual. An attorney is an officer of the court, but is also an executive official who holds prosecutorial discretion. The separation of powers requires that the courts allow the free exercise of the discretionary powers of the executive branch as to whether there will be a prosecution in any particular case. Rule 7 of the Federal Rules requires the signature of the government attorney on the indictment in recognition of the prosecutor’s discretion. Without this signature, there is no valid indictment. Reversed.


(Rives, J.) A federal grand jury may inquire into any matter involving potential criminal violations within its jurisdiction and to return indictments where it finds probable cause. The government attorney should prepare indictments requested by the grand jury and sign them, but does not have to proceed to prosecution on those indictments. The signature of an attorney on the indictment does not indicate the attorney’s approval of the indictment and does not begin a criminal prosecution, it merely indicates the authenticity of the document.

(Brown, J.) The United States Attorney cannot be compelled to sign an indictment, but he must prepare the indictments requested by the grand jury. The court has the authority to require the attorney to prepare the indictment in legal form.

(Wisdom, J.) The grand jury operates as a shield, protecting individuals from governmental tyranny, not as a sword, in an accusatory fashion. The prosecution of crimes is a function of the executive branch alone. The Attorney General has concluded that sufficient evidence does not exist to convict the two individuals investigated by the grand jury for perjury and that a trial would have the effect of inhibiting African Americans from registering to vote.


In this case, the conflict arose between a desire to enforce the law and the national policy to prevent racial discrimination, particularly in voting. As Judge Wisdom’s concurrence notes, the discretion on which cases to prosecute rests with the executive branch, and not with the grand jury.

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