Administration Shake-up and Executive Privilege

When President Trump announced that he was installing Stephen Miller, his combative, controversial aide, to replace Susie Wiles as White House chief of staff, it occurred to me that this shuffling of the deck, and others undoubtedly to come, should be viewed with an eye toward the investigations that will top Congress’s agenda when Democrats take control of both chambers in January.

Polling attendant to the midterm election, in which Republicans were wiped out, indicated that corruption was a top concern of voters — of slightly more concern than even high prices, according to an oft-cited Fox News poll from October. I suggested to Rich on the podcast last week that at least some of this owes to the Democrats’ message discipline (and the dutiful media amplification thereof). I take a back seat to no in insisting that officials and their cronies must be held accountable for public corruption; but I am skeptical — to put it mildly — of Democratic campaign rhetoric that framed administration self-dealing as a material cause of high prices and sticky inflation. Regardless, people dislike both public corruption and high prices, so the implication that one causes the other is appealing even if dubious.

I have to assume, then, that Democrats feel they are on solid footing to launch aggressive probes — at least until there is blowback that they are up to the same lawfare tactics that unnerved the public and helped Trump win in 2024. (On that score, Trump’s brazen lawfare and, before that, House Republicans’ scrutiny of the Biden family has given Democrats a lot of running room.) There will be multiple investigations; Democrats will argue that crimes have been committed and, therefore, that administration officials are obliged to testify at, and surrender relevant documents for, congressional inquiries. This is especially so, they will stress, because the Trump Justice Department will not investigate the administration.

Also unpopular according to polling were Trump’s zealous immigration enforcement policies, championed by Miller. Raking ICE (the federal Immigration and Customs Enforcement agency) over the coals is a Democratic priority. Expect several related committee and subcommittee investigations. And remember, with Trump president for another two years, Democrats figure they will not be able to get major legislation passed. The lack of legislative activity could open up a lot of calendar for oversight hearings. (Unfortunately, I suspect Democrats may find Trump, who is not a conservative, very willing to work with them on progressive, statist measures.)

The Trump administration can be expected to stonewall Democratic demands for information, documents, and testimony. Judicial rulings in recent years, including the Supreme Court’s 2020 decision in Trump v. Mazars, virtually guarantee that these disputes will play out in the courts — which will help the administration slow the committees down.

Presidential administrations customarily assert executive privilege in refusing to comply with congressional subpoenas served on executive officials. Privilege arguments are stronger when the officials in question are part of the White House staff rather than officers of executive agencies that Congress has created by statute (e.g., ICE, the Justice Department, the FBI, the Defense Department, and so on). And the higher ranking an official is on the president’s staff, the more viable are the president’s assertions that communications and documentary work product are entitled to confidentiality and may be withheld from Congress.

I don’t want to overstate that last point in the matter of Miller’s elevation to chief of staff. He was Wiles’s deputy, so he already had a very powerful, high-ranking executive staff post before being moved to the top job. The Justice Department’s Office of Legal Counsel (OLC), the lawyers’ lawyers in the government, have long advised that all senior presidential advisers have absolute immunity from compulsory congressional testimony. If Wiles were still in place, and Democratic subpoenas came for Miller for his work as her subordinate during the last two years, the administration would have made the same privilege assertions they would make on his behalf as chief of staff. Courts would probably assess them the same way.

On the other hand, disputes between the political branches are more political tugs-of-war than legal controversies (Mazars notwithstanding). Hence, Congress needn’t and likely won’t accept Trump privilege claims and OLC opinions as dispositive. The January 6 committee subpoenaed Mark Meadows, a chief of staff in Trump’s first term, and when he declined to testify the House held him in contempt. It made a big difference that Biden, then the sitting president, did not support the former Trump chief of staff’s privilege claims. Still, even the Biden Justice Department declined to prosecute Meadows. Yet, the Biden DOJ did not hesitate to bring criminal contempt charges against a lower-ranking Trump White House staffer, Peter Navarro, when he similarly defied a January 6 committee subpoena by claiming executive privilege — and Navarro ended up convicted and sentenced to four months’ imprisonment. (Although the difference in rank played a role in the DOJ decision to pass on Meadows but charge Navarro, another important factor was that Meadows was generally cooperative while Navarro was generally combative.)

There was also extensive litigation in the first Trump administration over Democratic-controlled committee attempts to force the president’s White House counsel, Don McGahn, to testify and produce documents. To be sure, that controversy had a wrinkle not present today: With Trump’s permission, McGahn had cooperated with the investigation of Justice Department special counsel Robert Mueller, so there were questions about whether the president had waived privilege. (The administration claimed that cooperating with an executive branch inquiry does not waive the privilege with respect to congressional investigations. The courts never resolved the matter; eventually, a compromise was reached in which McGahn testified but limited to his answers to what he had already told Mueller.)

Even assuming (as I do) that President Trump eventually pardons himself and perhaps hundreds of administration officials, the administration realizes that Democrats could win the presidency and take over the Justice Department in 2029. Such clemency grants would not shield Trump officials, after the pardons, from either being called to testify by Congress or being prosecuted for contempt or obstruction if they defy subpoenas (or from perjury charges if they agree to testify but allegedly make false statements).

As the president shakes up his staff and moves new officials into place, expect that serious consideration is being given to making it as difficult as possible for Democrats (a) to compel subpoena compliance, and (b) to prosecute recalcitrant officials at the risk of rendering staffers in the next Democratic administration vulnerable to similar investigation and prosecution.