WASHINGTON — Allies of President Trump are preparing for legal costs that could climb into the millions if Democrats win Tuesday’s midterm elections and launch investigations. The administration, however, is planning its defense and has gained a new legal tool that could significantly prolong the proceedings.
The White House counsel’s office has expanded its legal team ahead of possible Democratic gains in Congress and received offers of help from several outside law firms. Meanwhile, lower-level administration officials are purchasing legal insurance to protect themselves from potential investigations.
Trump was impeached twice during his first term after Republicans lost 42 House seats in the 2018 midterm elections. Democrats are expected to investigate a broad range of issues this time, including alleged corruption and the business dealings of Trump’s family and relatives of other senior officials.
The extent of the Republicans’ challenges will depend on whether the GOP loses one or both chambers of Congress. A less likely, though still possible, loss of the Senate would expand the number of investigations and drive up the related legal expenses.
In a significant development, the Justice Department’s Office of Legal Counsel issued an opinion in August arguing that the president may invoke executive privilege over “communications that he has with advisers who do not work for the Executive Branch.”
The position could give former officials, outside allies, relatives and potentially even businesses grounds to resist demands for testimony and documents — setting off court battles that may take months to resolve.
Officials and legal experts say the interpretation could substantially slow Democratic investigations. In the House, those inquiries are likely to be led by Rep. Robert Garcia (D-Calif.) on the Oversight Committee and Rep. Jamie Raskin (D-Md.) on the Judiciary Committee.
“At a certain point, Democrats are likely going to be forced to lessen the scope of targets because right now it’s clear that their biggest risk is having a net of targets that is far too wide,” a Republican operative told The Post.
Trump’s second-term team has so far been less susceptible to defections and has consolidated into a smaller, more loyal circle after years of investigations that pursued the president during his four years in political exile.
A White House official told The Post that Trump has a “cohesive team” that is more “willing to fight back” than his team was during the first term. “We will see everyone fight back pretty hard,” the official said.
‘New constitutional defense’
Trump’s expected effort to assert executive privilege over nearly any communication involving him would introduce an unusual complication for Democratic congressional investigations.
“The OLC opinion, by extending executive privilege to private individuals, creates a new constitutional defense that will enable the White House and private individuals advising the president to refuse to comply with congressional subpoenas,” said Jonathan Shaub, a University of Kentucky law professor and expert on executive privilege.
Shaub, who worked in President Joe Biden’s White House counsel’s office and at the OLC during President Barack Obama’s administration, told The Post that private individuals targeted by Democratic investigations could use the opinion to reject questions or document requests concerning their interactions with Trump.
The next steps, however, would be neither swift nor straightforward.
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A comparable legal dispute arose during Trump’s first term, when former White House Counsel Don McGahn refused in May 2019 to testify about allegations that Trump obstructed justice during Special Counsel Robert Mueller’s Russia investigation. The court battle continued for two years, ending after Trump had left the White House, when McGahn agreed to a private interview.
“Those cases tend to take a very long time to work their way through the court and the appellate process,” Shaub said.
“Democrats sued McGahn to enforce their subpoena very quickly after he refused to testify, but the case took almost two years and continued until after the ensuing election, by which point the case had largely lost its salience.”
Still, Trump would not necessarily be able to halt the investigations. Democrats could subpoena email, telephone and social media companies as an alternative way to obtain information. They could also try to revive the rarely used power of inherent contempt, allowing Congress to fine or imprison individuals who defy its demands.
“Private companies, such as cellular carriers or email providers, are much more likely to provide information in response to a subpoena rather than try and use the OLC opinion to shield themselves,” Shaub said.
“If they are served with a congressional subpoena, I do not think they will give the OLC opinion any weight. If the White House or a private individual wants to stop them from complying, including by relying on the executive privilege arguments in the OLC opinion, they would likely have to sue the company and ask a court to block release of the documents.”
Another option would be to forge ahead without a thorough investigation — as arguably occurred during the 2019 impeachment of Trump for pressuring Ukraine to investigate alleged Biden family corruption. In that instance, many officials testified, but a swath of underlying and potentially supporting documents was not secured before the House vote.
Trump was impeached a second time in 2021 for allegedly inciting an insurrection to challenge the 2020 election results. In that instance, the House impeached him exactly one week after his supporters pillaged the Capitol, with little investigation and his own words largely used as evidence.
The then-Republican-held Senate acquitted Trump in 2020 of abuse of power and obstructing Congress following his first impeachment and acquitted him in 2021 by a narrower margin.
Who pays?
The investigations are expected to be a bonanza for lawyers in Washington as administration officials and allies scramble to protect themselves from what could be massive bills.
It’s unclear if the administration will have a concerted legal defense fund for lower-level staff, who often are paid poorly. In some cases, defense work is expected to be provided pro bono — though many staffers aren’t leaving anything to chance and are taking out insurance policies.
Hans von Spakovsky, senior legal fellow at the conservative Advancing American Freedom advocacy group, founded by former Vice President Mike Pence, said “anyone who goes to work for the federal government these days should pay the premiums for federal employee liability insurance.”
“I did that when I was at the Justice Department to cover potential legal costs if I somehow got investigated,” von Spakovsky said. “Never had to put in a claim but the premium cost was not very expensive.”
Annual premiums for one policy circulating among administration staff cost about $350 for $300,000 in coverage or about $500 for double the anticipated legal fees.
Some Trump-aligned groups, flush with cash this year, potentially could recycle leftover money from the campaign, particularly the Republican National Committee, which in the past paid some of Trump’s own criminal defense bills.