“If the case is still pending, there would be decisions that would have to be made, both by the new Congress about whether to continue with the lawsuit ... and more importantly by the new president as to whether to continue to defend against the lawsuit and in effect renew the assertion of executive privilege,” said American University Washington College of Law professor Dan Marcus, himself a former associate attorney general at the Justice Department and general counsel of the 9/11commission.
The most similar recent legal fight over a contempt citation was the 1982 case of former Environmental Protection Agency Administrator Anne Gorsuch Burford, who refused to provide documents to Congress. The U.S. attorney for the District of Columbia refused to impanel a grand jury. In that case, it was the Justice Department that attempted to get a civil court to get an executive privilege ruling in its favor, but the court ordered the case to be resolved politically. There was ultimately a negotiated settlement.
Vice President Joe Biden waits to conduct a mock swearing-in ceremony with Sen. Brian Schatz, D-Hawaii, in the Capitol's Old Senate Chamber, December 2, 2014. Schatz was sworn in to serve the remainder of his term since he was appointed to the seat after Sen. Daniel Inouye, D-Hawaii, passed away.