Experts are quickly reacting to the back-and-forth between the White House and incoming House Oversight Committee Chair Robert Garcia (D-Calf.), and they’re warning that President Donald Trump’s threats are nothing more than a paper tiger.
On Tuesday, the White House counsel’s office sent a letter to Garcia saying that “threats” to subpoena people “could be” illegal. Garcia responded with his own statement Wednesday, making it clear that he doesn’t care much what the White House thinks, given the U.S. just delivered Democrats a “mandate” to fight “corruption” among other things.
Speaking to the New York Times on Wednesday, Peter M. Shane, NYU public-law scholar, called White House counsel Will Scharf’s threat “legally baseless.”
“Our Constitution protects legislators from the threat of criminal prosecution while performing official duties as an essential bulwark to repel executive overreach and defend checks and balances,” he told the Times.
The House has not only its Article II powers, but also the “Speech and Debate Clause.”
NYU law professor and Just Security co-editor-in-chief agreed, but also added that what the White House put in writing could have its own issues.
It “may trigger law against ‘corruptly’ by ‘threatening letter or communication’ obstructing Congress,” he wrote on BlueSky. He also called it a “self-own.”
“It is also a self-own: The ignominious Scharf letter will very likely damage the Trump administration in any litigation that Congress pursues in courts,” Goodman wrote.
“Congressional oversight and the issuance of subpoenas by definition cannot be the focus of legitimate criminal prosecution,” Shane also said about the threat from the White House. He explained that Trump can’t turn protected legislative acts into crimes no matter how desperately he wants to.
Judges have the power to reject any improper subpoenas from the White House that treat lawmakers as if they’re criminals, he added.
“It may be that an occasional subpoena may be quashed as outside the committee’s jurisdiction or for some other reason, but that is not a criminal offense,” said Shane.
Deborah Pearlstein, director of Princeton’s Program in Law and Public Policy, commented on BlueSky that the move was “a particularly ham-fisted stab at intimidation.”
She added that it was clearly “driven by fear and an attempt to appease wealthy friends of the president who benefited from the grift and now may be on the receiving end of a congressional inquiry. It’s worth the paper it’s written on, not more.”
“During the first Trump term I was appalled by former White House Counsel [Pat] Cipilone’s letter to Congress, which I called ‘bananas’ and ‘a barely layered middle finger to Congress.’ This is worse,” said Gregg Nunziata, the executive director of the Society for the Rule of Law.
Georgetown Law Professor Steve Vladeck quipped his own interpretation: “Only ‘we’ get to threaten to abuse our constitutional authority in order to intimidate other branches from exercising their constitutional prerogatives.”
Punchbowl News’ Jake Sherman asked, “Will this deter Democrats?”
He noted it’s “unlikely. There is ample precedent that Congress can investigate nearly anything it wants. But this does set the tone for Trump’s posture toward Democrats in 2027.”
What Trump can do, however, is cost people money, make their lives stressful, raid their homes and allow FBI agents to take their possessions and valuables until individuals can fight to get them back.