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It was a strange contempt proceeding that threatened Negro voting throughout Mississippi, but it should have been no surprise. Once on the bench in a state where only 5% of adult Negroes are registered to vote, Judge Cox, 63, has consistently refused to find any pattern of discrimination. Moreover, he has filled trial transcripts in rights cases with gratuitous obiter dicta. At a hearing last March, he referred to a Negro voting registration drive as "grandstanding"; he repeatedly described 200 applicants as "a bunch of niggers" and called them "chimpapzees" who "ought to be in the movies rather than being registered to vote." Fit for Jail. The latest case to cast Cox as a judicial Horatio at the segregation bridge began in 1962 when two Negro witnesses told of being denied the right to register seven years before.
They said that on that day they had seen a white man allowed to sign the registration book. As it turned out, the white man in question had been present, but he had actually registered elsewhere. "Outraged" at this revelation, Judge Cox accused the Negro witnesses of perjury.
The Government declined to prosecute on the ground that the Negroes were guilty only of an insignificant slip of memory. But Cox persisted, and last fall the Negroes were indicted by a state grand jury. The Government countered by arguing that states cannot prosecute alleged federal perjurers. Cox tried a new tack when a federal grand jury began looking into civil rights violations throughout Mississippi. Somehow that jury was persuaded to see things Cox's way. It indicted the Negroes, and then Cox ordered U.S. Attorney Robert E. Hauberg to prepare and sign the indictment.
With tears in his eyes, the towering Mississippi-born Hauberg "most humbly" refused on direct orders of Acting Attorney General Katzenbach. "I do judge you to be in civil contempt," intoned Cox, ordering Hauberg to jail "until you decide to comply." Cox then ordered Katzenbach "to show cause why he should not be adjudged guilty of contempt."* Irreparable Damage. Faced with an unprecedented challenge, the Justice Department last week petitioned the Fifth Circuit Court of Appeals for a writ of prohibition against Cox's order on the ground that the U.S. Attorney General has sole authority for initiating all federal prosecutions. This does not prevent Cox's grand jury from issuing indictments with an outside lawyer's help, but it does free the Government from participating in "unwarranted indictments" against the very Negroes it seeks to help. In short, says the Justice Department, Cox cannot usurp the U.S.
prosecutor's job.
The appellate court, having granted a stay, will now hear Cox's argument.
As the judge sees it, Rule 7 (c) of the Federal Rules of Criminal Procedure commands that all federal indictments "shall be signed by the Attorney for the Government." If his judicial superiors agree, Cox would then be protected by Rule 48, which says that the Government can drop indictments only "by leave of court"—in this case, Judge Cox. To argue these subtleties, Cox has enlisted three high-powered Mississippi lawyers, including State Attorney General Joseph T. Patterson.
There is more involved than what the Justice Department calls "irreparable damage" to Government authority.