White House counsel Will Scharf has warned the Democrat set to lead the House Oversight Committee that investigations targeting the Trump administration could be considered criminal and themselves worthy of investigation.
In a letter dated Monday and made public on Wednesday, Scharf told Representative Robert Garcia of California that the administration is "monitoring the abusive and capricious threats that are now proliferating from Democrat legislators" and that threats against government officials could be deemed criminal. "Threats to executive branch officials designed to deter them from public service, or process designed merely to abuse or instill fear in the recipient may cross the line into blatant criminality. And issuing unlawful subpoenas with the intention of depriving citizens of their constitutional rights and privileges may warrant further investigation," the letter said.
Scharf cited Supreme Court precedents limiting congressional investigations, including Watkins v. United States from 1957 and Trump v. Mazars from 2020, arguing that investigations must further a legitimate legislative purpose and that Congress cannot use them to exercise criminal prosecution powers assigned to the executive and the judiciary.
The warning follows the Democrats' victory in both chambers of Congress in last week's midterm elections. On election night, Garcia posted a blunt message for administration officials: "Lawyer up!" Scharf's letter also referred to remarks by several lawmakers, including Garcia's discussion in a November 7 interview of contacts with state attorneys general and using the committee to gather information for possible prosecutions. Days earlier, President Donald Trump directed the Justice Department to investigate Democrats over what he described as threats of impeachment and other punishment.
Responding on Wednesday, Garcia said the committee would continue its work despite what he described as threats from the administration. "It appears Donald Trump has something to hide," he said, adding that Congress does not need the White House's permission to do its job. Legal scholars dismissed the warning: Peter M. Shane of New York University's law school said the Constitution's Speech or Debate Clause shields lawmakers from prosecution for their official work, while Ryan Goodman, also of New York University, called the letter "legally repulsive." The letter names no statute that the Democrats' statements could violate.
The new Congress convenes in January, when Democratic majorities are expected to launch investigations into executive overreach, corruption involving the president's family, friends and political allies, and the administration's conduct over the past two years. Subpoenas, refusals and lawsuits are expected to follow.
