United States v. Cox

342 F.2d 167 (5th Cir. 1965)



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. 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.


After a grand jury heard testimony in a criminal case and requested the U.S. Attorney to prepare an indictment, he refused to do so on instructions from the Attorney General. When the U.S. Attorney further refused the district court's order to draft and sign the indictment, the district court found both US Attorney and Attorney General guilty of civil contempt. They sought review of the contempt order with the United States Court of Appeals for the Fifth Circuit, seeking a writ of prohibition against the district judge to prevent enforcement of the order.


Was the contempt order proper?




In reversing the order as to the U.S. Attorney, the court determined that his signature was necessary to the validity of the indictment and that the affixing or withholding of his signature was a matter of exclusive executive discretion that could not be coerced or reviewed by the courts. In dismissing the appeal as to the Attorney General, the court held that the district court's order was interlocutory as to him and was, therefore, not appealable. 

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