(concurring specially):
Mine is a middle course. I agree with the opinion written by Judge Jones that the District Attorney may not be compelled to sign the formal indictment which the Grand Jury has voted to return. I concur also that F.R.Crim.P. 48 (a) vests the unfettered discretion in the District Attorney to determine whether a prosecution is to be maintained or dismissed. The trial Court’s range of action is confined to the protection of the rights of the defendant, F.R.Crim.P. 48(b). But I do not agree that the District Attorney may ignore the efforts of the Grand Jury to the point of declining to prepare in proper legal form the indictment they have voted to return. On the contrary, I am of the view that the Court may properly compel the District Attorney to act as legal scrivener to the Grand Jury. The Court may, therefore, order the District Attorney to prepare the indictment in legal form. Since the joint Rives-Gewin-Bell opinion would empower the Court to compel signing of the indictment — a thing which necessarily encompasses preparation of the writing — I align myself with them to the extent of ordering the District Attorney to prepare the indictment.
Before discussing this limited duty, I have these comments in furtherance of the Court’s holding that the prosecutor may not be compelled to sign the indictment — the necessary last step to an indictment’s vitality.
Responsibility for determining whether a prosecution is to be commenced or maintained must be clearly fixed. The power not to initiate is indeed awesome. But it has to reside somewhere. And the more clearly pinpointed it is, the more the public interest is served through the focus of relentless publicity upon that decision. It may not, with safety, be left to a body whose great virtue is the combination of anonymity, transitory authority, and political unresponsibility.
All must be aware now that there are times when the interests of the nation require that a prosecution be foregone. These instances will most often be in the area of state secrets and national security. With stakes so high, the safety of our country, and hence the security of the world, ought not to be imperiled by leaving the important decision to a body having no definitive political responsibility. And it is hardly realistic to suggest, as do the dissenters, that these factors may be evaluated by the Grand Jury. What will be the source of their information? How extensive will it be? How close will a Grand Jury session approach a presidential cabinet meeting? How will essential government secrets be kept when disclosed to persons none of whom as Grand Jurors will have been subjected to customary security clearance checks ?
And even in less sensitive areas, the practical operation of the prosecutorial function makes imperative the need for executive determination. The familiar example is the deliberate choice between those to be prosecuted and those who, often equally guilty, are named as co-conspirators but not as defendants, or others not named who are used as star government witnesses. And in other situations, of which the instant case may well be typical,1 the executive’s purpose to effectuate specific policies thought to be of major importance would be frustrated or encumbered were a Grand Jury given the sole prerogative of determining when a prosecution is to be effectively commenced.
Putting to one side these factors which bear on the delicate nature of governmental decisions, there are technical reasons indigenous to criminal law which are equally compelling. Federal crimes are more and more for violation of highly complex statutes. Federal jurisdiction, indeed, whether the activity consti*183tutes a federal crime, depend on intricate facts, many beyond the knowledge and experience of laymen composing the Grand Jury.2 The aim of the Grand Jury indictment as the means of protecting the citizen against the initiation of unfounded charges is hardly advanced by a rule that permits the Grand Jury on its own to initiate the prosecution when the conscientious District Attorney knows to a legal certainty that a federal crime cannot be established.
Finally, it seems to me incongruous to assert, as do the dissenters, that the signing of the indictment is a ministerial act having no function other than one of authentication. I am, of course, aware that language of such import has been employed in some of the cases.3 I do not see why an indictment formally signed by the foreman and reported in a solemn open court proceeding as the act of the Grand Jury needs “authentication”. And I am at a complete loss to understand how the District Attorney— excluded as he is from the Grand Jury while it is voting, F.R.Crim.P. 6(d)— can “authenticate” from hearsay, or why his imprimatur is any better or different than that which would come from other Grand Jurors, each of whom can be polled by the Judge, not as to his vote, but whether a majority did vote to return the true bill.4
The fact is that the signature of the District Attorney has much more awesome consequence. Without a doubt that signature, together with that of the Grand Jury’s foreman, is a formal, effective initiation of a prosecution. What it might be in the absence of the District Attorney’s signature, we need not determine. With it, the whole prosecution has been started. And what was previously an unfettered discretionary right on the part of the executive not to initate prosecution has now been set in motion and can be stopped only on the executive taking affirmative action5 for dismissal with all of the uncertainties which F.R. Crim.P. 48(a) generates.6
But while I am firm that signature is a vital and significant act which reflects the exercise of an executive discretion to *184initiate prosecution — a thing here lacking — I am equally positive that the District Attorney has the duty to prepare the indictment when requested to do so by the Grand Jury. If this lacks logical consistency, I can only urge that an institution as old as the Grand Jury, implanted in the structure as idealistic as the Constitution, is one born, not out of logic, but out of the needs of history’s rich experience.
Whether a Grand Jury is, or is not, an agency outside of or beyond the traditional three powers, it certainly exists. It exists as a distinct institution with important functions. It operates as an established agency in connection with the Federal Judiciary. It is customarily charged with the important duty — as it was here specifically — to look into all crimes against the Federal Government.
Since it is charged with the duty of ascertaining whether, in the opinion of the Grand Jury, there is probable cause for believing that federal crimes have been committed, it has not only the right but the imperative duty to make a report of its conclusions to the tribunal giving it those instructions. As it is an instrument of the law, it is entitled to make its official report in a mode and terminology befitting that atmosphere. Broadly stated, it may report in one of three ways. It may formally report a no bill. It may return a true bill indictment in customary form. Or it may return a presentment, a constitutional mode fortunately no longer practiced.
To me the thing seems this simple: the Grand Jury is charged to report. It determines what it is to report. It determines the form in which it reports. Once it determines that what it wants to report is to be in the form of a true bill indictment, it obviously needs legal help. Unless its official report is to have no more significance than a presentment —a loose and ambiguous procedure which will not constitute the initiation of a prosecution — it is essential that the indictment be drawn with great care and precision. Even with the modern and proper liberality in procedural matters, both civil and criminal, the indictment to be valid must fairly assert each essential element of the crime.7 It is a denial of all that the profession of law stands for to think that at this important juncture in its work, the Grand Jury can get along without a lawyer. The need is imperative. The source of help is restricted. It has neither the means nor the capability of obtaining or using outside counsel. The very nature of the Grand Jury proceedings makes it impermissible for private counsel to work with and participate in Grand Jury inquiries. And it is unrealistic to suppose that through some sort of controlled confrontations, the Grand Jury, or its emissaries, could disclose enough of the facts heard to permit the lawyer to draft the indictment without, at the same time, rending the veil of secrecy.
There are a number of reasons why it is essential that the Grand Jury’s conclusions be reflected in language which is legally sufficient and in proper form.
First, and perhaps foremost, in no other way can the Grand Jury effectively carry out its obligations as charged to it by the Judge. An important historical body, it ought not to have to cast about for recognition or, seemingly frustrated as it was in this case, mill around the courtroom or its environs in a sort of hat-in-hand helplessness. Although, as the Court holds, the “indictment” thus returned would be ineffective without the signature of the District Attorney, re*185porting its conclusion in traditional legal form would do two things. First, it would clearly reflect the conscientious conclusion of the Grand J ury itself. And, second, it would, at the same time, sharply reveal the difference of view as between the Grand Jury and the prosecuting attorney.
This leads to the second important reason. The powers of the Executive are so awesome in determining those whom it will not prosecute, that where there is a difference between the Grand J ury and the Executive, this determination and the resulting conflict of views should be revealed in open court. With great power comes great responsibility. Disclosure of this difference of view and the resulting impasse would subject this decision of the Executive to the scrutiny of an informed electorate. The issue would be clearly drawn and the responsibility, both legally and in the public mind, plainly fixed. There would not be the sort of thing reflected in this record in which only in the loosest way could the public see what it was the Grand Jury purposed to do and what the Executive declined to help it to do.8 And for future cases unless the Court holds (as it does by the concurrence of Judges Rives, Brown, Ge-win and Bell) that the District Attorney must prepare the indictment form for the Grand Jury, even that limited disclosure would not be available. This is so because the Court (through another majority) holds that the trial Court may not compel the District Attorney to sign the indictment. There would thus be no occasion for, or any relief to be expected from, an oral report to the Court of the pending impasse.
By following this middle course we preserve fully the rightful independence of the Grand Jury in its inquisitorial role and the time-proved wisdom of the separation of powers which commits determination (and responsibility) to the Executive. This route avoids the dissenters’ process which at one and the same time regards the act of signing of no real consequence, as being essential to “really” initiate the prosecution, but which means nothing since the Executive may immediately demand that the Court dismiss the proceedings. Unless the dissenters anticipate that the Judge on a post-indictment Rule 48(a) motion to dismiss will undertake to determine — or appear to be doing so — whether there are “good” enough grounds for the Executive’s determination not to prosecute, the public disclosure, so vital to pinpointing responsibility within the ranks of the Executive, will be no greater than the open court proceedings in which the unsigned indictment is reported together with the fact of impasse.
For these reasons I concur specially in the reversal of the contempt order, the dismissal of the Acting Attorney General’s appeal, and the denial of the writ of prohibition.
. Use of tlie “law” is a common weapon against members of a class seeking to achieve civil rights. Such action is now specifically prohibited by the Civil Rights Act of 1964. See, e. g., § 203(e), 42 U.S. C.A. § 2000a-2 (1964).
. See, as examples, prosecution for violation of the Pure Food & Drug Act, Van Liew v. United States, 5 Cir., 1963, 321 F.2d 664, and 321 F.2d 674; and for failure to file SEO registration statements for the sale of oil leases subsequently construed to be investment contracts, Roe & Stratoray Oil, Inc. v. United States, 5 Cir., 1961, 287 F.2d 435, and 1963, 316 F.2d 617.
. See note 6 of the Rives-Gewin-Bell opinion. Interestingly, enough, in all but one the indictment was actually signed, though signed by the Assistant District Attorney, not the District Attorney himself. In the other the signature was typed. No case has yet held that an indictment which the District Attorney deliberately refuses to sign has any vitality.
. In the instant case signature or other action of the District Attorney was not needed to establish what the Grand Jury desired to do.
. The humor of the incident as reported by the Supreme Court of California does not conceal this great historical truth:
“An incident related in 2 Campbell’s Lives of the Chancellors 173 is of interest in this connection. After [Lord Holt] had ordered the imprisonment of a group of fanatics called ‘Prophets’ for seditious language, [he] was visited by Lacy, one of their friends, who informed a servant that he carried a message ‘from the Lord God.’ Lacy was admitted and told Lord Holt: T come to you a prophet from the Lord God, who has sent me to thee, and would have thee grant a nolle prosequi for John Atkins, his servant, whom thou has cast into prison.’ Lord Holt replied: ‘Thou art a false prophet, and a lying knave. If the Lord God had sent thee it would have been to the Attorney-General, for he knows that it belongeth not to the Chief Justice to grant a nolle prosequi; but I, as Chief Justice, can grant a warrant to commit thee to bear him company.’ ”
People v. Sidener, 1962, 58 Cal.2d 645, 25 Cal.Rptr. 697, 698, n. 4, 375 P.2d 641, 642.
. The Court seems to be in virtual agreement that this rule is for the protection of the defendant alone. But the fact is we have not yet so held in a case directly presenting the question and in any event, viewed from the standpoint of the parties here, neither the District Attor*184ney nor the Attorney General were required to assume that Rule 48(a) might not ultimately be construed as reserving considerable power to the District Judge himself in determining whether to enter a dismissal on the Government’s motion. Actually, of course, the dissenters’ concurrence on this is carefully hedged.
. We have constantly fresh reminders of the substantive importance of the formal sufficiency of indictments. See, e. g., Russell v. United States, 1962, 369 U.S. 749, 82 S.Ct. 1038, 8 L.Ed.2d 240; Smith v. United States, 1959, 360 U.S. 1, 79 S.Ct. 991, 3 L.Ed.2d 1041.
. Indeed, the colloquy — some of it being quoted in the early part of Rives-Gewin-Bell opinion — between the Court and the Grand Jury, the Court and the District Attorney reflects on all hands extremely guarded statements, inquiries and responses couched in the vaguest sort of language lest there be a breach of Grand Jury secrecy or an intrusion upon tbe part of the Court or the District Attorney into the affairs reserved exclusively to it. Only in the contempt proceedings resulting in an order which we hold to have been unauthorized was the impasse between the Executive and the Grand Jury revealed in any detail.