Attorney General Michael Mukasey waited until late Friday to announce that he will block any prosecution of Bush officials for contempt of Congress. Mukasey’s protection of White House Chief of Staff Josh Bolten and former White House counsel Harriet Miers could trigger a major inter-branch fight and advances yet another extreme legal interpretation of executive authority by the Bush Administration. It is not surprising, therefore, that he waited until late on a Friday to try to minimize media scrutiny of this controversial decision.

Bolten and Miers stand accused of contempt for refusing to supply information and to appear before the House Judiciary Committee in its investigation of 2006 firings of several U.S. attorneys. By refusing a great swath of documents and testimony , the Bush Administration’s claim of privilege was always dubious. There may indeed be privileged material in this fight with Congress. However, as is often the case with this Administration, the White House claim was so extreme that it was doubtful to be upheld in a court of law in its entirety.

Individual executive branch officers have always been subject to personal liability for contempt of Congress. While the President can pardon them, it was understood that he could not block them from being called to account in a court of law. Indeed, a court offers a neutral forum for such disputes between the legislative and executive branches to be heard.

Mukasey is essentially saying that, regardless of whether a president may be in flagrant violation of the law in ordering aides not to testify, the aides themselves can never be prosecuted — even former aides like Miers. Mukasey stated that he will not allow the case to be presented to a grand jury. Thus, by controlling the prosecutors, he is controlling (and blocking) the legal process.

He wrote Speaker Pelosi: “The department has determined that the noncompliance by Mr. Bolten and Ms. Miers with the Judiciary Committee subpoenas did not constitute a crime . . .Therefore the department will not bring the congressional contempt citations before a grand jury or take any other action to prosecute Mr. Bolten or Ms. Miers.”

The obvious meaning of “did not constitute a crime” is that, under his view, noncompliance could never constitute a crime. This would effectively make any prosecution of Administration officials for contempt a practical impossibility so long as a president claims that the refusal is based on privilege. Nixon must be kicking himself that he never had a Mukasey in this corner. He was stuck with a bunch of losers like Archibald Cox and William Ruckelshaus who believed in the supremacy of the rule of law over raw presidential power.

One has to wonder who Democrats like Sens. Chuck Schumer and Dianne Feinstein justify their decision to save Mukasey’s confirmation. Click here. Not only did he ultimately refuse (ever) to answer the question on torture, he has refused material to Congress, blocked prosecutions of executive branch officials, blocked any investigation of the torture program, and sought the promotion of lawyers who supported the illegal programs on torture and illegal surveillance.

What is most striking about this latest Mukasey moment is how circular his logic has become. Just a couple weeks ago, Mukasey said that he would not allow an investigation into the crime of torture because the president relied on the advice of lawyers in ordering the torture of suspects. Click here. Now, he is saying that lawyers cannot be prosecuted because they relied on the orders of the president.

Congress has the ability to fight back. The only question is whether it has the stomach to do so. It appears ready to file with a court to seek judicial intervention. It can also squeeze the funding of Justice Department offices and use its oversight authority aggressively. Of course, it can claim the right to try these cases itself — though this is highly unlikely.

Individuals were once arrested by the Sergeant-at-Arms for the House or Senate. They were dragged to one of the house floors (it is purely a matter for each individual house) and made to answer for the charges. This became too time-consuming so Congress created that statutory process of referral in 1857. Congress last used inherent contempt in a 1934 Senate action involving a one-week trial on the Senate floor. William P. MacCracken, a lawyer and former Assistant Secretary of Commerce for Aeronautics, was found guilty and sentenced to 10 days imprisonment. The trial was notably upheld by the Supreme Court in Jurney v. MacCracken.

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