Mick Mulvaney refuses to comply with House subpoena and doesn't show up for impeachment deposition

[LTG]

15. No one will be prosecuted of criminal contempt.

Nor will they spend a day in Capitol Police lockup.

They may be saying “absolute immunity” but I would bet almost anything that the White House lawyers used “Executive Privilege in their notice to Congress. They almost certainly used it as well in their directive to the witnesses to not appear as the President was asserting Executive Privilege.

The difficulty is that the courts hold a Presidential assertion of Executive Privilege to be presumptively valid unless a convincing argument by Congressional lawyers convinces the court otherwise.

Unlike private privileges the judge isn’t permitted to review the materials in chambers to make such a determination. A very clear and convincing argument as to what is being investigated and what is believed to be in the testimony or materials and why it is crucial to the investigation. It can’t be a fishing expedition.

As to individuals who comply with a presumptively valid written Presidential directive. It won’t be considered legally criminal contempt until they defy a court order to appear and testify. Any direct criminal referral from Congress, until then, will be ignored by DOJ under prosecutorial discretion as established by court holdings going back over nearly 200 years.

There has long been discussion about the impropriety of Congress coercing or blackmailing the Executive Branch to prevent the exercise of a power necessary to the proper execution of Constitutional powers. It is not only a necessary power but a vital element in the balance of power between the Executive and Legislative branches.

It’s probably not even legally obstruction until a court rules that claim of privilege is invalid and orders the testimony or materials be provided.

All that said, it’s unlikely a court would like to get in the middle but would, due to the seriousness of the inquiry. It is also unlikely they will want to interfere with Congressional exercise of their recognized power of inherent contempt. That exercise of power, however, would probably not be wise prior to a court ruling on the validity of the privilege. The best option is a civil suit brought by Congress against the President re: the validity of the claim of Executive Privilege.