Yesterday Speaker Pelosi offered Attorney General Mukasey one week to decide whether he would prosecute Miers and Bolten for contempt of Congress. The Attorney General apparently didn’t need that much time because he responded today that there will be no such prosecution. Mukasey stated that “the contempt of Congress statute was not intended to apply and could not constitutionally be applied to an executive branch official who asserts the president’s claim of executive privilege” and therefore “the department has determined that the noncompliance by Mr. Bolten and Ms. Miers with the Judiciary Committee subpoenas did not constitute a crime.”
Pelosi responded that “the House has already provided authority for the Judiciary Committee to file a civil enforcement action in federal district court and the House shall do so promptly.” It now seems virtually certain that there will be a civil suit brought by the House, posing serious legal risks to both Congress and the executive branch.
Before bringing suit, Pelosi will consult with the Bipartisan Legal Advisory Group (BLAG), a little known entity consisting of the House Majority and Minority Leaders and Whips. It appears that this group will divide along partisan lines, with the Minority Leader and Whip opposing the bringing of a lawsuit.
Here is the question, which I will endeavor to answer tomorrow: is it possible to envision a principled compromise that would allow BLAG to vindicate the institutional interests of the House without descending into a political foodfight?