On Saturday, the President of the United States announced on Truth Social that Democrats promising to investigate his administration are “SLEAZEBAGS” who “should go to jail,” adding, “I am ordering the Department of Justice to look into this criminal act, immediately!” On Sunday, Attorney General Todd Blanche declined to rule out prosecuting members of Congress for the non-crime of scheduling hearings. And thus we add another paragraph to the already lengthy ethical complaint that should permanently strip Blanche of his license to practice law.
But Blanche isn’t the only lawyer playing bumbling mob consigliere these days.
On Monday, White House Counsel Will Scharf wrote to Rep. Robert Garcia, the incoming chair of House Oversight, also threatening criminal prosecutions for any Democrat that tries to investigate Trump.
Punchbowl News posted the three-page letter issuing a blanket, preemptive threat to weaponize the DOJ to keep Dems from asking more questions about Trump’s bosom buddy Jeffrey Epstein:
The Supreme Court has held that “[i]nvestigations conducted solely for the personal aggrandizement of the investigators or to ‘punish’ those investigated are indefensible.” Watkins v. United States, 354 U.S. 178, 187 (1957). Congressional investigations must further a legitimate legislative task; Congress cannot employ them to exercise powers of criminal prosecution assigned to the Executive and the Judiciary.
This is true in the abstract. Congress does need a legislative purpose to conduct an investigation. What he glides over is that Congress has massive latitude to define its purpose, every investigation Dems have talked about is clearly within that window, and there’s absolutely no criminal liability even if they weren’t.
I’d say other than that he’s doing fine, except he made other stupid points too.
That Watkins quote is accurate at least. That’s actually a win with Trump’s gaggle of lawyers. But Scharf might have wanted to read the whole case. In Watkins, the Supreme Court held that Congress can’t hold someone in contempt if the questioning isn’t clear enough to put the witness on notice that they might need to invoke their Fifth Amendment rights. That matters for those in Trump’s orbit, but it’s not clear Trump even has Fifth Amendment rights at this point. After Trump v. United States, it’s not exactly clear what of the many scandals Dems hope to investigate wouldn’t enjoy this Supreme Court’s grant of functional immunity.
Watkins did not, however, set limits on the acceptable motives of congressional investigations. And this case was about the RED SCARE, so the Court had every reason to denounce those motives as illegitimate.
Democrats propose investigations into corrupt dealing and conspiracies to circumvent statutory and court ordered limits. Compare these “motives” to the last GOP House. Jim Jordan subpoenaed a former Manhattan prosecutor over a state prosecution of Trump. There was no need for a court to question motives… the explicit reason Jordan provided had no possible federal legislative purpose. Nobody in Trump’s circle wrote three pages about the dignity of the process then.
For what it’s worth, back when Republicans were trying to manufacture a federal reason to interfere in the Manhattan courts, Scharf was on the frontlines rambling incoherently about it.
Scharf does slightly better with Trump v. Mazars, in that the case actually addresses the prospect of an invalid congressional investigation. Unfortunately, the reason that decision came down 7-2 is that it left Alito and Thomas bleating from the outside about the investigation. The majority in that case didn’t reject the investigation outright, but sent it back to the district court to build a record. The district court narrowed the subpoena but otherwise approved some of the rationales for investigation. The matter was settled before working its way back up the appeals process.
Garcia, for his part, has answered Scharf’s letter like someone who has actually read the relevant case law: “Congress has wide latitude to conduct investigations and oversight … We are a co-equal branch of government and will not be deterred by baseless threats.”
Several Democrats have played fast and loose with the solemnity of congressional probes. When they’re posting “LAWYER UP” on social media as victory-lap posturing, it does a disservice to the gravity of the process. That said, “lawyer up” — the phrase that sent the West Wing to the fainting couch — has been a MAGA staple for years.
In any event, social media bragging doesn’t mean there’s not a clear legislative interest here.
Congress wrote the Impoundment Control Act, which Trump and his DOGE toadies actively assaulted. Congress wrote the immigration laws and funds the agencies carrying them out, and the DOJ and DHS have all but bragged about conspiring to circumvent. Congress is more than free to probe whether it needs to strengthen these laws. It also has the authority to look into impeachment, which should cover all of this stuff.
Which brings us to the part where Scharf graduates from hypocrite to amateur:
Beyond being inconsistent with the clear, well-recognized constitutional limitations on your investigative functions, 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.
Maybe we should cut Scharf a break because he has personal feelings about legislative investigations. Back when he worked for Missouri’s disgraced governor Eric Greitens, the Missouri House called Scharf as a witness because he’d previously written a memo suggesting Greitens may have obscured donors. Greitens ultimately resigned over the campaign finance scandal anyway. Oh, and Greitens had the felony invasion of privacy and computer tampering issues swirling at the time.
Scharf only works for real winners!
NYU’s Ryan Goodman called the letter “a self-own” that “will very likely damage the Trump administration in any litigation that Congress pursues in courts.” That’s correct. Had Scharf waited for an actual subpoena and argued, in context, that it lacked a legislative hook, that would be lawyering. Firing off this blanket tantrum before the new Congress even gets seated is a clumsy caricature of mob intimidation. Every time the White House objects to an investigation from now on, Congress can hold up this letter as proof that the White House was never even trying to evaluate subpoenas in context.
And then there’s whatever the hell this is:
Bizarrely, you have chalked your motives up to nothing more than “gay” “pettiness” rather than any legislative purpose and compared yourself to a demonic clown.
Scharf is either a guy who thinks The Onion is real or a bigot who thought inserting “gay” into his letter gave it more weight. Why not both?
Garcia quipped that the administration needed to lawyer up. If this is their best lawyering, they might want to consider going pro se.
The post White House Counsel Goes Full Mob Consigliere, Threatens Dems If They Investigate Trump appeared first on Above the Law.