Trump Administration Braces for a Possible Democratic Congress

The Brief will be off tomorrow and early next week for a family vacation. I’ll see you Thursday Aug. 20!

Trump Administration Tries to Set the Terms of Post-Midterms Congressional Oversight

With the prospect of a possible Democratic-controlled House and/or Senate drawing near, the Office of Legal Counsel at the Department of Justice has provided the White House with an opinion declaring that a “private adviser” — defined as “anyone the President consults outside the Executive Branch” — may be covered by executive privilege if they play a role in “official presidential decisionmaking.” This, among other things, gives the White House the green light to attempt to flout congressional subpoenas for such individuals.

Asked about the OLC opinion by TPM yesterday, Democrats in Congress scorned it, and insisted it would not hamper their efforts. “This Mafia State Code of Silence has nothing to do with the American Constitution and it won’t stop Judiciary Dems from investigating this Administration’s rank corruption,” the Democrats on that committee said in a joint statement.

The OLC opinion is non-binding and is, merely, the administration’s position. Judges may, and likely will, disagree if executive privilege fights make contact with courts. Still, it may slow down accountability for a historically corrupt administration: Democrats had been planning to get individuals outside the administration to engage swiftly with their investigations, given Trump’s tendency to assert privilege over everything and anything involving White House aides in his first term.

The opinion is not solely aimed at blunting congressional oversight, however. As Lisa Rubin notes at MS NOW, the American Bar Association is seeking documents from Trumpworld figure Boris Epshtehyn to find out more about his role in the early Trump II effort to pressure law firms into cutting deals with the administration; ABA has challenged that pressure campaign, arguing it impinged on law firms’ First Amendment rights. The DOJ has argued those communications are covered by executive privilege. If reports about Epshtehyn’s role in the deals are correct, he fits the DOJ’s extremely broad description of a “private adviser,” as does anyone else who speaks with the president.

The OLC has laid the groundwork for various administration attacks on the law throughout this second term. In April, it released an opinion finding that the White House did not need to comply with a law requiring it to turn certain records over to the National Archives. (A judge said the opposite, and ordered the administration to do so.)

“OLC has lost all credibility and should be abolished,” Sen. Sheldon Whitehouse (D-RI) told us.

Hard-core Election Denialists Want an ‘Emergency’ Ahead of 2026

With right-wing activists beginning to abandon hope and acknowledge the SAVE Act’s poor chances of passing the Senate, various influencers have begun to consolidate around another big idea: Trump should declare a national emergency, allowing him to do … something.

• This possibility surfaced this week when radio host Wayne Allyn Root urged Trump to do so, and Trump, in classic form, declined to rule anything out. “Stranger things have happened,” he said. “I’ll leave it at that.”
• Trump’s dud of a speech in July about supposed issues with the 2020 election also stoked these fears, with his former lawyer Ty Cobb telling PBS that all Trump’s claims were intended as the “predicate that he needs to declare an emergency at or about the time of the elections.”
• A draft executive order claiming to do just that surfaced earlier this year, obtained by TPM and other outlets.
• As with all schemes by Trump and his allies to use the executive branch to screw with elections, this one runs up against the reality that the executive branch has no authority over elections. Various emergency orders could allow Trump to stoke a lot of chaos. But they do not empower him to seize election administration from the states.
• Those who are rattled by this talk are not off base, however. Trump often says in public what he intends to do, the villain at the end of a spy thriller unnecessarily explaining his entire evil plan. Even if this specific scheme is half-baked, that Trump is entertaining it — and that he has entertained similar schemes before — should have us all ready for something.
• “The nearer danger was never the proclamation,” writes James Sample, a professor of law at Hofstra University, as he picks apart Root’s understanding of the law. “It is counting and certifying, in a handful of counties, if control of a chamber comes down to a margin thin enough to litigate.”

Tabs

• Mike Lindell has not yet conceded his bid for governor. On election night he was insisting the numbers were fishy.
• The Trump DOJ has added a longtime critic of hate groups to its SPLC indictment.

People of the Hour

It’s White House deputy chief of staff Dan Scavino, “human printer” Natalie Harp, and director of Oval Office operations Walt Nauta, who got to come with Trump in the catering-crate-to-plane scheme, and were not left on the decoy with all the other White House officials and the press.

Are We at War?

We have, apparently, won? “Iran is all talk and no action, the Bully of the Middle East No Longer,” the president writes.