This week's edition of Judge Hirsch's Constitutional Calendar concerns an incident that occurred in our lifetime. Think about that. Within recent times, a Federal Judge presiding over a civil rights lawsuit sought the indictment, prosecution, and incarceration of two men fighting for their right to register to vote. To Vote! In the United States of America. A supposed democracy. The only decent thing about this incident is that we as country air our dirty laundry. But as Ms. Alexander's book makes painfully clear, we do not learn from our mistakes.
In a federal civil rights case brought in 1962 against the Registrar of Clarke County, Mississippi, and the State of Mississippi, two black men, Rev. W. G. Goff and Mr. Kendrick, testified that they had attempted to register to vote and been denied. The trial was presided over by U.S. District Judge W. Harold Cox, a notorious racist, who, at the conclusion of trial, announced from the bench, “I want to hear from the Government about why this court shouldn’t require this Negro, Rev. W. G. Goff, and his companion Kendrick, to show cause why they shouldn’t be bound over to await the action of the grand jury for perjury.” When one of the government attorneys attempted to respond, Judge Cox went on, “I just want these Negroes to know that they can’t come into this court and swear to something as important as that was and is and get by with it. I don’t care who brings them here ... those two witnesses are completely discredited as far as I’m concerned. ... I think they are fit subjects for the penitentiary.”
In due course Judge Cox caused the matter to be referred to the grand jury. (The federal grand jury in question consisted of 21 men and two women; of the two women, one was the only African-American on the grand jury.) The grand jury was perfectly willing to follow Judge Cox’s directions and indict for perjury (a 12-person majority being sufficient for indictment), but the United States Attorney, Robert E. Hauberg, refused to prepare or sign indictments. Judge Cox then “order[ed] and direct[ed Mr. Hauberg] to disregard your instructions from the Department of Justice and to prepare true bills ... as this Grand Jury may direct you to do and to sign those bills ... as the Grand Jury may decide, under penalty of contempt.”
Judge Cox then recessed proceedings to afford Mr. Hauberg an opportunity to again confer with higher-ups at the DOJ. Acting Attorney General Nicholas deB. Katzenbach instructed Hauberg not to prepare or sign perjury indictments against Goff or Kendrick, and if necessary to accept an adjudication of contempt. (Legend has it that Katzenbach told Hauberg that if he – Hauberg – didn’t feel that he could stand up to Cox and take the contempt adjudication, then he – Katzenbach – would be on the next plane to Mississippi and would go to jail in Hauberg’s stead. I have no idea if there’s a word of truth to that.) When court reconvened, Hauberg very respectfully declined to honor the court’s order and was held in contempt. Judge Cox also issued an order to Katzenbach citing him to show cause why he should not also be contempted. The jail sentences were stayed to afford the government a chance to appeal.
The matter was resolved on January 26, 1965, when the en banc Fifth Circuit issued multiple opinions supporting the proposition that the decision to seek and sign indictments – and, more importantly in this case, the decision not to seek and sign indictments – is consigned exclusively to the executive branch of government and is not subject to judicial review. United States v. Cox, 342 F. 2d 167 (5th Cir. 1965). Particularly worth reading is the concurring opinion of the legendary John Minor Wisdom, 342 F. 2d at 185 et. seq.