Secretary of State Marco Rubio spoke to President Donald Trump during a roundtable discussion in the State Dining Room of the White House in Washington, DC, in 2025. As the midterm elections approach, the outcome regarding Democrats regaining control of Congress and its subpoena power remains uncertain. President Donald Trump is establishing legal parameters for contesting any legislative investigations into his actions.
In a memo from the Justice Department and in legal filings, the Trump administration contends that the president can maintain confidentiality not only for discussions with White House advisers but also for interactions with individuals outside the government. The administration argues that revealing the identities of individuals involved in significant policy efforts would violate the presidential confidentiality rights afforded to Trump. Furthermore, the administration claims it can disregard a Watergate-era statute that prohibits the destruction of White House documents.
This legal positioning occurs as Trump, in his second term, increasingly relies on business leaders, non-government attorneys, and personal acquaintances to influence his policy agenda. Jamie Bair, a partner and head of congressional investigations at the law firm Crowell & Moring, stated, "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."
Congressional Democrats are investigating the administration's connections with FIFA, the implications of Trump's ties to the cryptocurrency industry on federal policy, and other instances of Trump family business activities that they argue are linked to government policies. While Trump's opponents believe he is unlikely to succeed with his most extreme claims of secrecy, they recognize that the litigation process may extend beyond January 20, 2029, when he is expected to leave office.
Democrats are closely monitoring the Trump administration's legal arguments as they strategize on various tools to counteract these claims, including potential pressure points beyond seeking compliance in court. A senior House aide, who requested anonymity to discuss internal Democratic strategies, noted, "There are the collateral consequences of being held in contempt, of refusing to provide documents, and standing behind a blatantly unlawful assertion of executive privilege."
Democrats anticipate that the potential for public, investor, state authority, and future administration backlash will motivate business leaders and others targeted with subpoenas to cooperate with oversight investigations, even if Trump asserts privilege could protect them. Bair remarked, "The private sector folks are going to be completely caught in the middle of this," predicting that lawmakers will make compliance difficult for any company that does not provide requested documents.
The president's stance on executive privilege for outside advisers may soon face scrutiny in a Justice Department effort to block a subpoena for Boris Epshteyn, a legal adviser to Trump who is not a government employee, in a case initiated by the American Bar Association regarding the administration's pressure on law firms.
In a letter to the White House this week, Senate Democrats, led by California Senator Adam Schiff, requested information on which non-government advisers the administration believes are covered by presidential privilege. They stated, "Executive privilege 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 defended its legal positions regarding the records law and executive privilege, with spokeswoman Lauren Bis stating, "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 DOJ’s Office of Legal Counsel, which provides legal guidance to executive branch agencies, has a history of advocating for broad interpretations of executive powers and privileges. However, legal experts, including former high-ranking government attorneys from both political parties, argue that the DOJ has overstated the legal precedents supporting its claims. This assertion will be tested in the American Bar Association case, but the resolution may take months or even years as it progresses through higher courts. The DOJ's release of its opinion is viewed as a signal of how the administration plans to respond to a Democratic Congress's attempts to subpoena non-government individuals and entities for information.