President Trump's allies are anticipating substantial legal expenses should Republicans lose control of Congress in the upcoming midterm elections, with the administration preparing a new strategy to impede potential Democratic investigations. The White House counsel's office has increased its legal staff and enlisted outside law firms in preparation for a wave of inquiries that could target alleged corruption and business dealings of Trump's family and associates. This proactive measure comes as lower-level administration officials are reportedly securing legal insurance to protect themselves.
The scope of these potential investigations and the associated legal costs would escalate if the Republican party loses not only the House but also the Senate. Democrats, having previously conducted extensive investigations following the 2018 midterms which saw them gain 42 House seats, are expected to pursue a wide range of actions.
New Defense Strategy
A significant development in the administration's defense is a recent opinion from the Justice Department’s Office of Legal Counsel. Issued in August, the opinion asserts that the president can claim executive privilege over communications with advisers outside the executive branch. This interpretation could provide a legal shield for former officials, outside allies, and even businesses, allowing them to refuse testimony and document production. Experts believe this assertion could significantly delay Democratic inquiries, particularly those likely to be led by Rep. Robert Garcia (D-Calif.) on the House Oversight Committee and Rep. Jamie Raskin (D-Md.) on the Judiciary Committee.
"At a certain point, Democrats are likely going to be forced to lessen the scope of targets because right now it’s clear that their biggest risk is having a net of targets that is far too wide," a Republican operative told The Post. A White House official described Trump's current team as "cohesive" and "willing to fight back" more forcefully than in his first term.
University of Kentucky law professor Jonathan Shaub, an expert on executive privilege, noted that the Office of Legal Counsel's opinion "creates a new constitutional defense that will enable the White House and private individuals advising the president to refuse to comply with congressional subpoenas." Shaub, who previously served in the White House counsel's office under President Biden and at the OLC under President Obama, explained that advisors could use this opinion to decline answering questions or providing documents if targeted by Democratic investigations into their interactions with Trump.
Protracted Legal Battles
Legal experts anticipate that such challenges could lead to prolonged court proceedings, similar to the case involving former White House Counsel Don McGahn. McGahn refused to testify in 2019 regarding alleged obstruction of justice by Trump during the Mueller investigation. The ensuing legal battle persisted for nearly two years, concluding after Trump had left office, with McGahn eventually agreeing to a private interview. "Those cases tend to take a very long time to work their way through the court and the appellate process," Shaub stated.
Despite these potential delays, Democrats may pursue alternative strategies, such as issuing subpoenas to third-party companies like phone or email providers. Shaub suggested these companies would likely comply with subpoenas rather than attempt to use the executive privilege claims to shield information, potentially forcing the White House or individuals to file lawsuits to block document releases.
Legal Costs and Insurance
The anticipated investigations are expected to create a lucrative environment for lawyers. Administration officials and allies are preparing for potentially high legal fees. While the administration has not confirmed a unified legal defense fund for staff, some individuals are opting for personal legal insurance. Hans von Spakovsky, senior legal fellow at Advancing American Freedom, recommended federal employees obtain such insurance, noting that premiums can be relatively inexpensive. Some Trump-aligned groups may also allocate campaign funds to cover legal expenses, a practice previously employed by the Republican National Committee.
