President Donald Trump, his family and officials in his orbit are preparing for a Democratic takeover next year — even though the president remains publicly optimistic that his party will retain control of Congress.
They are looking for lawyers, expanding the definition of executive privilege, briefing political appointees and reviewing oversight material from Trump’s last term to prepare for another onslaught from Democrats.
The moves underscore the concern permeating the West Wing as Democrats appear poised to regain control of at least the House and possibly the Senate.
Unlike in 2019, when a relatively unseasoned and often chaotic White House was slow to prepare, Trump’s second-term team is determined to be ready, including pushing the bounds of legal precedent and scoring a few political points of their own along the way.
Inside the White House, Trump aides started preparing for Democratic investigations as early as this spring, with the counsel’s office holding private briefings for political appointees, according to two former administration officials familiar with the briefings. Like others in this story, they were granted anonymity to discuss behind-the-scenes preparations. The White House counsel’s office reassured current employees that the administration’s lawyers will represent them in their official capacities if Congress demands documents or testimony, according to the two officials, although political appointees who have left government would not necessarily have the same protection.
Still, current and former administration officials are asking each other for recommendations about who could represent them in a personal capacity if they are subpoenaed in 2027, said one of the former officials and another Trump ally.
Some have reached out to Stefan Passantino, a former deputy White House counsel who is now a partner at Miller Strategies, according to the Trump ally. Passantino, who did not respond to a request for comment, represented Cassidy Hutchinson during the Jan. 6 investigations and worked with the Trump Organization on its responses to congressional investigations in 2023.
The White House counsel’s office also encouraged staff to be careful about what they put in writing and offered guidance about how to respond to congressional inquiries, according to the Washington Post.
The briefings emphasized the importance of ensuring that financial disclosures, ethics filings and other required paperwork are complete, accurate and submitted on time, according to a former White House official familiar with the discussions.
“Basically, don’t give them a reason to find anything,” the former official said.
Trump is focusing on preserving the GOP majorities in Congress, White House spokesperson Olivia Wales said in a statement, “and doubling down on the progress he has made to lower costs for families, put more money back in workers’ pockets, and make our communities safer than ever before.”
“Democrats have no agenda to improve the lives of the American people, just plans to obstruct and baselessly target President Trump’s commonsense agenda,” she added.
‘A new toolbox’
The administration has also laid down an untested legal marker to try and protect communications between Trump and people outside government — likely signaling a more aggressive approach to subpoenas.
In an Aug. 10 memorandum, the Justice Department’s Office of Legal Counsel concluded that executive privilege can apply to presidential communications with private advisers, “so long as the communications … relate to official presidential decisionmaking, involve or reflect communications with the President or his direct advisers, and are confidential.”
The memo does not, however, argue for blanket immunity from a subpoena, and it specifies that Congress could overcome the assertion of privilege by showing that the information is “demonstrably critical.”Trump relies heavily on a constellation of informal advisers, family members, business figures and outside allies on everything from who his next press secretary should be to where to deploy the National Guard. The opinion could provide a legal basis for the White House to resist congressional demands for communications with Trump or his senior advisers, and even for people who aren’t government employees.
“This is not an extension of executive privilege,” a White House official said. “This memo reaffirms the longstanding position of DOJ since 1974. 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.”
The administration could potentially use the OLC memo alongside the protections afforded by the Supreme Court’s decision in Trump v. Mazars USA, which limited Congress’ oversight powers during the first Trump administration. The court ruled that Congress can seek a president’s personal records, but it also sought to protect the separation of powers by requiring courts to consider why the records are needed and why the request is not overly broad.
“Combine that with the extension of executive privilege to private advisers, then you have a whole new umbrella of potential privileged information,” said Brandon Rios, co-lead of the congressional investigations practice at DLA Piper, who served as then-Vice President Kamala Harris’ counsel. “And when you have an administration that has shown a direct interest in taking a maximalist approach to executive authority — those two things in concert are strong tools in a new toolbox.”
But it’s uncharted territory, and could potentially create a rash of headaches for company executives caught between the Trump White House and a Democratic-controlled Congress.
“For instance, if a CEO had a phone conversation with Trump, or if you went into the White House to present information to drive a decision-making process, the White House could take the position that those documents are subject to executive privilege,” said Alyssa DaCunha, co-chair of WilmerHale’s Strategic Response and Congressional Investigations practices. “That could put companies in a difficult position of trying to abide by the White House’s determinations of privilege protections while also telling their story to Congress.”
The targets
Beyond the president and his immediate family, Democrats have a long list of officials they’d like to probe and bring before committees: Chief of staff Susie Wiles, deputy chief of staff Stephen Miller, former Homeland Security Secretary Kristi Noem and her special adviser Corey Lewandowski, among others.
And Democrats plan to home in on businesses and outside entities that have fewer protections than White House advisers and staff.
“It’s tying corruption to the cost story that Democrats are trying to tell. Corruption costs Americans’ money, the self-enrichement, the foreign government payments, contracts to your friends and family,” said Kyle Herrig, founding partner at Focal Point Strategy Group who led the Congressional Integrity Project’s efforts to combat House Republicans’ investigations of the Biden administration.
Key hubs of defense inside the White House
As Democrats gear up, the White House is reshaping the office most responsible for responding to a Democratic Congress. Will Scharf, who was White House staff secretary, took over on Tuesday as White House counsel.
The quick transition is a stark contrast from 2018, when Democrats won the House. Aides at the time knew then-White House Counsel Don McGahn would soon depart, but his replacement, Pat Cipollone, didn’t take over until that December.
Scharf will play a major role in crafting the administration’s approach and building out a team of lawyers to respond to Democratic probes. And he will work closely with Attorney General Todd Blanche, who he worked with on Trump’s presidential immunity litigation, including the related Supreme Court case.
The former Trump official said that Scharf’s previous experience as staff secretary will serve him well.
“The staff secretary’s office is probably one of the most highly scrutinized offices in the White House, just because they have to be so mindful of every single thing that goes in front of the president,” the former official said. “Will has operated off of a very fine-tooth-comb process, and he would naturally take that into the White House counsel’s office.”
Compared to his predecessor, Dave Warrington, who was a “straightshooter” with his legal recommendation, the former official said they expect Scharf to “play a bit more to what the president wants.”
If Democrats take over, Scharf’s day-to-day work would be less focused on advancing the president’s agenda, and instead on preparing the administration to defend against subpoenas and investigations. Other offices would feel that shift as well: The White House has yet to announce a replacement for James Braid, the president’s top liaison to Congress.
Tevi Troy, a presidential historian and a former Bush White House aide, said the jobs “change in character” after the shift in power.
“The first six years of the Bush White House, being in White House counsel was the best job. It was amazing. You got to kibitz about Supreme Court nominations, and there was somebody from White House counsel in every briefing with the president,” he said. After Democrats took control of Congress in 2006, “they completely had to change the office because it became kind of battlers — people who’d fought in litigation.”
The effects of a possible Democratic Congress will be felt beyond the White House, too, as agencies are potentially wrapped up in investigations. Troy, who was deputy HHS secretary during the end of the Bush administration, said senior officials held weekly meetings with the department’s legal and congressional affairs teams to review subpoenas and investigations.
“It was an hour of my time every single week,” he said. “That’s a valuable hour, and a lot of senior people are in that meeting. So it takes away time from doing the agenda stuff you’re trying to do, trying to get your policies through.”
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