At the beginning of the second day of the Mukasey confirmation hearing, Senator Leahy asked Judge Mukasey (on C-SPAN Archive, AM Session, Day 2, first question)if he would allow a US Attorney to prosecute a Congressional Contempt proceeding. Mukasey indicated that he would not allow such a prosecution by the Justice Department.
He said that most claims of Executive Privilege, and all the Bush Administration assertions, were approved by the Justice Department before they were asserted. He concluded that the same Department that approved the claims could not later prosecute them. He also mentioned Office of Legal Counsel (OLC) opinions to this effect issued under the Clinton Administration by Walter Dellinger and under the Bush Administration by Ted Olson.
We are again confronted by the "Catch-22" famously identified by former OLC head Jack Goldsmith. A politicised Justice Department can immunize a rogue Executive in advance of almost any action. The same Justice Department can then use that immunity to refuse to prosecute the action in question.
This is a short diary because I am at a loss of words to characterize this assertion that the Justice Department is an arm solely of the Executive and that Congress can expect nothing from it.
It again appears that Congress must initiate the process of invoking inherent contempt (use "search" to find the many diaries describing this process) if it hopes to assert any kind of independence for itself and if it wishes to establish any power against an out-of-control Executive.