JONES, Circuit Judge:
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. Katzenbaeh, 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 un-controverted. 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 requirement of an indictment or presentment 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, 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, who is required to take care that the laws be faithfully executed. 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. 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. 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. 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 fore-
man 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.
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 ás 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 v/ith 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 Katzen-baeh, Acting Attorney General. Order on appeal reversed as to Haub.erg, United States Attorney. Petition for writ of prohibition denied.
. U.S.Donst. Amend. V.
. Nothing in this case involves or requires a discussion of a presentment.
. U.S.Const. Art. III.
. U.S.Const. Art. II, Sec. 1.
. U.S.Const. Art. II, Sec. 3.
. Ponzi v. Fessenden, 258 U.S. 254, 262, 42 S.Ct. 309, 66 L.Ed. 607.
. Schwartz, Federal Criminal Jurisdiction, 13 Law & Contemp.Prob. 64; 2 Ops.Att’y Gen. 482; 38 Ops.Att’y Gen. 98.
. Statements of the controlling principles and references to other precedents may be found in Dear Wing Jung v. United States, 9th Cir. 1963, 312 F.2d 73; Swepston v. United States, 8th Cir. 1961, 289 F.2d 166, cert. den. 369 U.S. 812, 82 S.Ct. 689, 7 L.Ed.2d 612; People v. Florio, 301 N.Y. 46, 48, 92 N.E.2d 881, 17 A.L.R.2d 993; Hassan v. Magistrates Court, 20 Misc.2d 509, 191 N.Y.S.2d 238; Murphy v. Sumners, 54 Tex.Cr.R. 369, 112 S.W. 1070.
. Consideration of the constitutionality of the rule is not necessary for the disposition of the matters before us.