President Donald Trump's aides are quietly preparing untested legal tactics to blunt a wave of Democratic investigations they expect after the midterms.
According to an article by Politico, new preparations have started since Will Scharf took over as the White House counsel on Tuesday. An August 10 Justice Department memo has also laid the groundwork for a broader use of executive privilege.
The White House counsel's office began briefing political appointees privately as far back as this spring, according to Politico. The office urged appointees to keep financial disclosures and ethics filings airtight and to think twice before committing anything to writing.
Lawyers reassured current staff that the Trump administration would represent them in their official capacities if subpoenas do arrive, even though appointees who have already left the government may not get the same cover, Politico noted.
Current and former aides are now hunting for personal attorneys ahead of possible 2027 testimony, according to Politico. Among the names circulating is Stefan Passantino, who defended Cassidy Hutchinson during the January 6 inquiries and advised the Trump Organization on earlier congressional demands, Politico noted.
The guidance from the counsel's office was blunt, with one former official saying, "Don't give them a reason to find anything," according to Politico.
The Trump administration has laid down what Politico called an "untested" legal marker. The DOJ Office of Legal Counsel argued in its August 10 memo that executive privilege can shield Trump's conversations with private, outside advisers, not just government employees. An anonymous White House official told Politico, "This is not an extension of executive privilege."
It stops short of blanket immunity, however, and concedes that Congress can demand information that is "demonstrably critical," Politico noted. That could leave company executives in what Politico called "uncharted territory" between the 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,” Alyssa DaCunha, co-chair of WilmerHale’s Strategic Response and Congressional Investigations practices, told Politico. “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.”