Executive Privilege and Contempt Prosecutions:

The Washington Post has a front-page story reporting the Bush Administration’s view that once the President has ordered a subordinate to exert executive privilege, a U.S. Attorney can’t bring a criminal case against that subordinate when Congress refers the case to the U.S. Attorney for a contempt prosecution. It’s not clear to me if “can’t” means “won’t,” or if the claim is that if he does, the courts must dismiss the prosecution; I gather it’s the former, although presumably the difference doesn’t matter here.

  I have no expertise in this area, so I don’t know how significant this story is. My amateurish guess is that this just adds another layer of litigation to the coming legal battles: it means that after the U.S. Attorney refuses to prosecute, Congress has to file a civil action seeking an order compelling the U.S. Attorney to refer the case to the grand jury. Courts then have to deal with that issue first, which could take a while as it works its way through the appellate process. That’s my guess, at least; I’m sure Marty Lederman and others will be able to say much more.