No one expects U.S. Attorney General Eric Holder to face criminal prosecution over the Obama administration's refusal to produce documents related to the botched gun-running investigation known as "Fast and Furious." But if the prospect ever emerges, he can take comfort in a legal memo written more than two decades ago by a prominent member of the Republican establishment.

The Republican-controlled House Oversight and Government Reform Committee voted this week to cite Holder for contempt of Congress after the Obama administration invoked executive privilege over the withheld documents. A vote by the full House of Representatives could be scheduled next week.

Power struggles between the executive and legislative branches over sensitive information are nothing new. They date back at least to 1792, when Congress was seeking information from President George Washington over a failed military expedition, according to the Congressional Research Service. Most disputes, however, never reach the courts and instead are resolved through political negotiations.

But there is a statute on the books that makes it a misdemeanor not to give Congress what it is seeking. The statute states that it is the duty of the President of the Senate or the Speaker of the House to refer a contempt case to "the appropriate United States attorney, whose duty it shall be to bring the matter before the grand jury for its action."

In the case of Holder, the House could ask the U.S. Attorney for the District of Columbia to bring the matter before a grand jury, according to a report on CNN.com by Peter Shane of Ohio State University's Moritz College of Law.

But Ronald Machen, the U.S. Attorney for the District of Columbia, would be under no obligation to bring the case to a grand jury. At least not according to an opinion written in 1984 by Theodore Olson, a former U.S. Solicitor General and the victorious lawyer in Bush v. Gore.

As an Assistant U.S. Attorney in the Justice Department's Office of Legal Counsel under President Ronald Reagan, Olson wrote that a U.S. Attorney need not refer a contempt citation to prosecute a member of the executive branch who is carrying out the president's orders in invoking executive privilege.

Olson's opinion was written in a case in which the administrator of the Environmental Protection Agency refused to turn over certain documents relating to the enforcement of the Superfund Act, invoking executive privilege. The Speaker of the House referred a contempt citation to the U.S. Attorney for the District of Columbia for prosecution. The House subsequently withdrew the contempt citation, but Olson said if the matter had ever litigated to a decision, Congress would have lost.

"We believe that the courts, if presented the issue in context similar to that discussed in this memorandum, would surely conclude that a criminal prosecution for the exercise of a presumptively valid, constitutionally based privilege is not consistent with the Constitution," he wrote.

In his opinion, Olson argued that the executive branch should retain discretion over whom to prosecute. He also offered a vigorous defense of the privilege and underscored the importance it played in the separation of powers that the framers of the Constitution envisioned.

"If one House of Congress could make it a crime simply to assert the President's presumptively valid claim, even if a court subsequently were to agree that the privilege claim were valid, the exercise of the privilege would be so burdened as to be nullified," he wrote.

Olson was not available to comment on Friday.

(Reporting by Andrew Longstreth)

Follow us on Twitter @AlisonFrankel, @alongstreth1, @ReutersLegal  | Like us on Facebook