At this point more than two months before the midterm elections, Democrats retaking control of Congress and its subpoena power is far from certain. But President Donald Trump is already laying down legal markers for how he’ll fight any attempt by lawmakers to investigate him.
In a Justice Department memo and legal filings, the Trump administration is arguing that the president can keep secret not just the conversations he has with his advisers within the White House, but that his dealings with individuals outside the government can be shielded as well. The White House is also saying in court that even disclosing the identities of the people who worked on significant policy efforts would infringe upon the presidential confidentiality to which Trump is entitled. And the administration has taken the stance that it can ignore a Watergate-era law prohibiting the destruction of White House documents.
The posturing comes as Trump, in his second term, has been notably reliant on a constellation of business moguls, non-government attorneys and old friends to help shape his agenda.
“There has been an unprecedented amount of interaction between the Executive Branch — particularly the White House — and the private sector that Congress has made clear is going to be the subject of oversight,” said Jamie Bair, a partner and head of congressional investigations at the law firm Crowell & Moring**.**
Congressional Democrats are already probing the administration’s interactions with FIFA, how Trump’s ties to the crypto-industry are affecting federal policy, and other examples of Trump family business maneuverings that Democrats say can be tied to government policies.
Trump’s opponents are confident that he will not prevail in the most extreme version of his secrecy claims. But they also acknowledge that the process for litigating those questions is a slow one that can drag out beyond January 20, 2029, when he leaves office.
Democrats on the Hill are watching the Trump administration’s legal arguments closely, as they plot the various of tools they’ll have at their disposal to fight back — including pressure points that go beyond pressing for compliance in court.
“There are the collateral consequences of being held in contempt, of refusing to provide documents, and standing behind a blatantly unlawful assertions of executive privilege,” a senior House aide, who spoke on the condition of not being named so they could talk openly about Democrats’ thinking, told CNN.
Democrats believe that the threat of pushback from the public, investors, state authorities and future administrations will encourage business leaders and others targeted with subpoenas to participate in oversight probes, even if Trump is claiming privilege could shield them.
“The private sector folks are going to be completely caught in the middle of this,” Bair, who did congressional oversight work for the House Foreign Affairs Committee, said. He predicted that lawmakers “are going to make it as painful as possible” for any company that doesn’t hand documents sought by Congress.
“They will say your name on television as many times as possible until the public pressure builds up enough for compliance,” Bair said.
President Donald Trump holds papers in the Oval Office of the White House before signing an executive order in Washington DC on March 31.
Alex Brandon/AP
The president’s position on executive privilege for outside advisers could soon be tested in a Justice Department effort to block a subpoena to Boris Epshteyn – a legal adviser for Trump who does not work in the government – in a case brought by the American Bar Association to challenge the administration’s pressure campaign on law firms.
In a letter to the White House this week, Senate Democrats led by California Sen. Adam Schiff demanded the White House inform them which other non-government advisers if believes the presidential privilege covers**.**
Executive privilege, they wrote, “is not an unlimited shield designed to insulate private citizens, informal advisers, and non-governmental actors from congressional oversight and public accountability.”
The White House, in a statement to CNN, defended its legal positions on the records law and on executive privilege.
“Throughout history, Presidents have relied on advisers outside of the executive branch. Restricting executive privilege to only communications with executive branch officials would make it impossible for the President to rely on important outside sources,” said White House spokeswoman Lauren Bis.
The DOJ’s Office of Legal of Counsel – which gives legal advice to agencies across the executive branch – has a longstanding tradition of pushing expansive views of executive powers and privileges. Still, legal experts – including former, high-ranking government lawyers from administrations of both parties – say that DOJ grossly exaggerated the case law supporting their arguments.
The claim will soon be tested in the American Bar Association case but could take many months or even years for the question to go up the chain of higher courts. Beyond how the argument is functioning in that Epshteyn dispute, the DOJ’s release of the opinion was viewed as a signal for how the administration would responds to attempts by a Democratic Congress to subpoena non-government individuals and entities for information about their dealings with the Trump administration.
Historically, lawmakers have focused their investigatory efforts that way because those individuals are viewed as not having the same constitutional protections as those within the executive branch, according to Tara Ganapathy, who has worked on congressional investigations both as a lawyer for several committees on the Hill as well as within in the Executive Branch, in roles advising agencies that were targeted in legislative probes.
Even if courts don’t ultimately uphold the administration’s arguments, it can be a bargaining chip those individuals can use in their negotiations with Congress over compliance with subpoenas.
There is “a lot of procedural value to having this OLC opinion” said Ganapthay, now a lawyer at the firm K&L Gates.
Last week, the administration pushed its executive privilege arguments even farther. In the same ABA case, the White House also told the court that Trump was asserting privilege to shield the identities of anyone who was advising Trump on how to craft his assault on law firms.
The White House said in court filings that disclosing those names “would have a chilling effect on communications within the Executive Office of the President, making it more difficult for the President to obtain candid advice from and explore alternative with a wider of senior advisers and their staffs.”
While the administration has framed those disclosures as protected under the presidential communications privilege – which courts have found to be established within the Constitution – legal experts predicted that judges may be more inclined to see such a claim as fitting under the framework of the “deliberative process” privilege.
That privilege sits on far shakier legal ground, according to Michael Bopp, the chair of Gibson Dunn’s Congressional Investigations Practice Group who previously worked in several investigative roles in the House and Senate.
Still, if Trump uses a similar strategy to obstruct the investigations of Democratic lawmakers, “Congress has not a lot of levers to pull to force the administration to produce that kind of information, unless it were to go to court, and it’s been reluctant to do so,” Bopp said.
The Justice Department is also trying to relieve Trump and his staff of their obligations to follow a Watergate-era law requiring that the White House preserve and hand over to the National Archives presidential records at the end of Trump’s term.
The fight over the Presidential Records Act, or PRA, was kicked off in April with an Office of Legal Counsel memo asserting the law was unconstitutional and that Trump no longer must comply with it.
“The Presidential Records Act is unconstitutional and a clear violation of the separation of powers,” Bis, the White House spokesperson, told CNN. “For over 200 years, the president owned his own papers and correspondence.”
Of particular concern to Democrats is that DOJ’s extraordinary attempt to nullify the law could be used to justify the deletion of communication sent on non-government messaging apps. (After the DOJ memo, the White House revised its document retention policy to give staff more leeway to delete certain text communications. The White House claimed the policy was still in line with the PRA; a federal judge disagreed.)
A federal appeals court is currently considering the ruling from US District Judge John Bates rejecting the administration’s claims that the PRA is unconstitutional, with oral arguments scheduled in October.
If the White House no longer had to preserve records of its activities, the administration could “could straight up lie about” what was happening behind the scenes, Bair said, and “there would be no contemporaneous records that would disprove it.”
The administration is framing its objections to the law around the idea that the statute amounts to unconstitutional effort by Congress to dig into White House operations—an argument that, if adopted by courts, could have knock-on effects on other oversight battles.
In briefs submitted to the appeals court, critics of DOJ’s arguments – including over 100 Democratic lawmakers – have stressed that the law protects not just the public and Congress’s access to those records, but the access future presidents to understand the decision-making of their predecessors.
“Harm to the public occurs the instant the White House destroys an official record, regardless of when the injury is actually felt,” the lawmakers wrote.
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