## Facts

- In a civil voting-rights case in Mississippi, two Black witnesses testified; the district judge concluded they had committed perjury.
- The Department of Justice ordered an FBI investigation and reviewed the matter, determining there was no basis for perjury charges.
- The district judge directed the United States Attorney to present possible perjury charges to a federal grand jury; the Acting Attorney General instructed the U.S. Attorney not to pursue indictments.
- After receiving instructions on perjury law, the grand jury indicated it wished to return indictments and asked the U.S. Attorney to prepare them.
- The U.S. Attorney refused to prepare and sign indictments, following the Acting Attorney General’s direction.
- The district judge ordered the U.S. Attorney to draft and sign the requested indictments and threatened contempt.
- When the U.S. Attorney did not comply, the district judge held him in civil contempt and issued a show-cause order directed to the Acting Attorney General based on his instruction not to comply.

## Issues

1. Whether a federal court may compel a United States Attorney to prepare and sign indictments that a grand jury wishes to return.
2. Whether a court may use civil contempt to punish a United States Attorney (and potentially the Acting Attorney General) for refusing to sign such indictments.
3. How Federal Rule of Criminal Procedure 7(c)’s signature requirement affects the validity of an indictment and the allocation of charging authority.

## Decision

- The Fifth Circuit, sitting en banc, reversed the civil contempt order against the U.S. Attorney and set aside the contempt-related proceedings directed at the Acting Attorney General.
- The court held that the decision whether to prosecute, including whether to prepare and sign an indictment, is an executive function committed to prosecutorial discretion.
- The court ruled that a district judge lacks authority to force a U.S. Attorney to sign an indictment and therefore cannot punish the refusal as contempt.

## Legal Principles

- Charging decisions, including whether to initiate a prosecution, are core executive functions; courts may not direct the executive to prosecute a particular case.
- A federal grand jury’s determination of probable cause does not itself compel the United States to prosecute; prosecution requires action by the government’s attorney.
- Under Federal Rule of Criminal Procedure 7(c), an indictment must be signed by “the attorney for the government”; without that signature, the indictment is not valid, reflecting the prosecutor’s control over bringing charges.
- The Fifth Amendment grand jury requirement functions primarily as a safeguard for individuals against unfounded prosecutions, not as a mechanism empowering the grand jury to compel prosecution over executive objection.
- Contempt sanctions cannot be used to enforce an order that exceeds the district court’s authority, including an order compelling the government attorney to sign an indictment.

## Conclusion

The Fifth Circuit held that a federal court cannot require a United States Attorney to prepare or sign an indictment requested by a grand jury, because the decision to prosecute is committed to executive discretion; accordingly, contempt cannot be imposed for refusal to sign.


United States v. Cox, 342 F.2d 167 (5th Cir. 1965) (en banc)