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Remember our mantra this week, pups? No retroactive immunity.

Waxman has it right. Mukasey’s assertion of executive privilege is ludicrous. First of all, you don’t just send a little note on a greeting card saying "we assert privilege". (OK, it wasn’t a greeting card, it was DOJ letterhead, but you get my point). When there is a subpoena out there you must bring a motion to quash that subpoena, otherwise you are in contempt. US v. Nixon, 418 US 683, 688.

From that motion, a District Court decision would be issued which determines whether or not privilege applies. More on that below.

Since Mukasey has NOT brought such a motion nor been relieved of the obligation to comply with the subpoena by court order, his little note to Congress today is prima facia evidence that he is willfully in contempt. Congress can and must vote to hold him in contempt on that basis alone. This is basic basic basic rule of law stuff here, folks. Anderson v. Dunn, 6 Wheat. (19 US) 204, 228 (1821).

Secondly, Mukasey’s failure to bring the motion does not box out a role for the courts here. Congress can bring its own motion to compel production of the records pursuant to the subpoena. 418 US 692. The basis for the motion (and why I think Congress should win) is as follows:

1) No motion to quash, subpoena is still live. Executive has failed to avail itself of any legal relief with respect to the subpoena.

2) Executive privilege is not absolute. It is a rebuttable presumption.

3) There are two main bases for declaring Executive Privilege:

a) The need for advisers to the president to be able to offer candid advice to the president confident that it will not be made public. Not our case here. The communications between the President and Pat Fitzgerald and the President and the FBI did not involve the transmission of advice or counsel to the president; to the contrary, these were adversarial interviews. Ditto the interviews with Darth Cheney a/k/a "Darkside."

b) Separation of powers.

However, neither the doctrine of separation of powers, nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances. The President’s need for complete candor and objectivity from advisers calls for great deference from the courts. However, when the privilege depends solely on the broad, undifferentiated claim of public interest in the confidentiality of such conversations, a confrontation with other values arises.

US v. Nixon, 418 US, 683, 707.

Mukasey cannot with a wave of his pen make executive privilege stand. "It is emphatically the province and duty of the judicial department to say what the law is." Id., at 177. Marbury v. Madison, 1 Cranch 137, 177 (1803). "Judicial control over the evidence in a case cannot be abdicated to the caprice of executive officers." US v.Reynolds, 345 US 1, 10-11(1953).

Notwithstanding the deference each branch must accord the others, the "judicial Power of the United States" vested in the federal courts by Art. III, 1, of the Constitution can no more be shared with the Executive Branch than the Chief Executive, for example, can share with the Judiciary the veto power, or the Congress share with the Judiciary the power to override a Presidential veto. Any other conclusion would be contrary to the basic concept of separation of powers and the checks and balances that flow from the scheme of a tripartite government. The Federalist, No. 47, p. 313 (S. Mittell ed. [418 U.S. 683, 705] 1938). We therefore reaffirm that it is the province and duty of this Court "to say what the law is" with respect to the claim of privilege presented in this case. Marbury v. Madison, supra, at 177.

US v. Nixon, supra, at 705.

Interestingly, Mukasey has not invoked the still-rebuttable–but harder-to-overcome–state secrets privilege which protects military matters which, "in the interest of national security, should not be divulged," not even to a federal court. US v. Reynolds, 345 US at 11. The States Secrets privilege was established by George Washington.

Want to take a fun quiz on Executive privilege and States’ Secrets privilege? Click here.

graphic from vitualis flickr creative commons