Even Republicans seem to think Democrats are poised to capture control of at least one chamber of Congress during the midterm elections. Consequently, Will Scharf, who took over as White House counsel this week, is reportedly leading other White House lawyers in battening down the hatches against an expected onslaught of congressional investigations.
Scharf, like so many of the administration’s top-ranking lawyers, formerly worked as one of President Donald Trump’s personal lawyers. That’s a problem, because there is a line between serving the presidency and serving the man who holds the office. There are times when that line can be fuzzy, but Trump has encouraged his administration to act as if there isn’t one at all.
Many of the individuals in Trump’s orbit are reportedly looking to lawyer up.
According to a recent New York Times profile of Scharf, “friends and colleagues who know him well say that he does not see standing up to Mr. Trump as part of his job.” That’s arguably true for his former role as White House staff secretary, but it doesn’t bode well for him encouraging cooperation with investigations that target Trump or his family. A former Trump official told Politico that “they expect Scharf to play a bit more to what the president wants’” than his immediate predecessor as counsel, David Warrington.
Many of the individuals in Trump’s orbit are reportedly looking to lawyer up and are hoping that Justice Department efforts to extend the scope of executive privilege to communication with private advisers will shield them from congressional subpoenas. The Washington Post reported in May that the counsel’s office, then run by Warrington, was giving political appointees 30-minute PowerPoint presentations about congressional oversight. According to the Post, staffers were also “encouraged … to be careful about what they put in writing and provided guidance for how to respond to congressional inquiries in a timely manner.”
During the first Trump administration, the White House legal team was initially focused on blunting the effects of the Russia probe and accordingly was slow to react to Democrats winning the House in 2018. That is, the attorneys were unprepared for the wave of requests for documents and testimony from staffers. Pat Cipollone, then Trump’s White House counsel, took a hard-line approach against cooperating with the inquiry, which culminated in Trump’s first impeachment. House Democrats eventually charged Trump with abusing his power in a scheme to influence the 2020 election and obstructing their investigation.
That said, Cipollone’s efforts to stonewall and stymie those probes were largely successful. Most of the evidence provided in the impeachment inquiry came from career staffers who testified over the administration’s objections. The executive branch turned over almost no evidence willingly. But even Cipollone and his top deputy refused to go along with Trump’s efforts to overturn the 2020 election, and they cooperated with the House Jan. 6 Committee’s probe.
It’s hard to say if similar limits exist for the cadre of lawyers who defended Trump against the indictments that followed his attempted coup. Many of them have been rewarded handsomely for their success. Besides Scharf, that includes Attorney General Todd Blanche and Solicitor General John Sauer. (Emil Bove, who was for a time the No. 3 at the Justice Department, is now a federal appeals court judge.) Even though none of these former personal attorneys still work for him directly, congressional Democrats would be wise to see a similar effort to halt their probes’ momentum.
Before he was tapped as counsel, Scharf served as White House staff secretary, essentially managing the flow of documents that reached Trump’s desk. He showed a glimpse of willingness to push back against his most extreme colleagues in that role. He wrote memos for chief of staff Susie Wiles laying out the problems with proposals to suspend habeas corpus for immigrant detainees and invoke the Insurrection Act against protesters. But there’s a difference between disagreeing with someone else in the White House and saying no to the president.
Democrats must employ speed and aggression and dole out real consequences to counteract the delays and drawn-out legal proceedings that Trump can be expected to use.
It’s worth noting that Scharf formerly wore a second hat in the administration as chair of the National Capital Planning Commission. He happily rubber-stamped approval for Trump’s multitude of construction projects, seemingly with little regard for laws or norms. His new role as White House counsel mandates that Scharf be less of a yes-man and strictly adhere to the law, but given his past history in Trump’s employ, the odds don’t seem great.
As he and other White House officials are reportedly expecting Democrats to investigate the Trump administration, those congressional Democrats would do well to review the tactics people on Team Trump, including Scharf himself, have previously used to avoid exposure or accountability. The success of those tactics helped Trump reach the White House again.
Democrats must employ speed and aggression and dole out real consequences to counteract the delays and drawn-out legal proceedings that Trump can be expected to use as he again tries to avoid accountability for his assault on democracy.
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