The Trump White House Has No Clue How Congress Works

Last week, California Representative Robert Garcia celebrated the Democratic capture of Congress in this year’s midterm elections with a two-word statement: “Lawyer up.” His remark was aimed at Trump administration officials, many of whom can expect closer scrutiny from the House Oversight Committee that Garcia is expected to chair in January.Those officials are not taking this well. White House counsel Will Scharf sent a letter to Garcia on Wednesday in which he threatened to prosecute him and members of Congress for issuing what he described as “unlawful” subpoenas.“Beyond being inconsistent with the clear, well-recognized constitutional limitations on your investigative functions, threats to executive branch officials designed to deter them from public service, or process designed merely to abuse or instill fear in the recipient may cross the line into blatant criminality,” he claimed. “And issuing unlawful subpoenas with the intention of depriving citizens of their constitutional rights and privileges may warrant further investigation.“The Trump administration expects members of Congress to discharge their investigative functions within settled constitutional limits,” Scharf continued. “The administration will not be extorted and will not be cowed by unlawful process motivated by animus, pettiness, hatred, or any other unlawful motive to intimidate, penalize, or interfere with the lawful functioning of government.”Scharf’s letter—and the sentiment behind it—is misguided. Two years of unified Republican governance appears to have left him and White House officials with a false impression of how the U.S. government actually works. Oversight is Congress’s gentlest tool to rein in a rogue presidency. If the White House doesn’t cooperate or comply, a simple majority of lawmakers can make things very painful for them very quickly.To start, Scharf’s threat is an empty one. Members of Congress such as Garcia have legislative immunity. It applies in two circumstances: They can’t be arrested while traveling to and from the Capitol, and they can’t face civil or criminal liability “for any speech or debate in either house.” Courts have broadly interpreted the latter provision to cover many of Congress’s official functions, including hearings and investigations. This is real, black-letter, Article 1 stuff—not that immunity nonsense that the Supreme Court conjured up for Trump two years ago.Scharf’s sentiment is still worth rejecting. It would be heartening to see at least one person in the Trump White House express concern about starting legal proceedings that are “designed to deter” someone “from public service” or launching a legal process “designed merely to abuse or instill fear in the recipient.” Unfortunately, Scharf’s focus is on milquetoast “threats to executive branch officials” instead of the much more frequent occurrence of threats by executive branch officials.This is the same executive branch, after all, that raided Minnesota Representative Ilhan Omar’s house last month on the eve of this year’s midterms on highly dubious grounds. The Trump administration is seeking to denaturalize Omar and deport her simply because the president doesn’t like her; federal agents were looking for evidence to support those legal theories. At one point, prosecutors brought spurious charges against one of Omar’s bodyguards in the hope that he would provide damaging evidence against her. It apparently didn’t work, and the charges were later dropped.Trump has already fired one attorney general and multiple federal prosecutors because they either refused to or couldn’t carry out sham prosecutions against the president’s political opponents. His efforts to oust Federal Reserve Governor Lisa Cook with dubious allegations of mortgage fraud led to a Supreme Court ruling that upheld the Fed’s independence, insulating her from removal without further evidence. The Justice Department has indicted former FBI Director James Comey twice on similarly weak grounds, already prompting a federal judge to dismiss the charges once. Federal courts in general are highly wary of the administration’s politicized prosecutions and would likely not grant DOJ the deference that they once applied.What’s missing from Scharf’s analysis is a proper understanding of our constitutional order. In the beginning, there was only Congress. George Washington’s Cabinet consisted of just five Senate-confirmed officials. By one estimate, around 3,900 people worked in the entire federal government in 1802. Most of them were postal employees and customs collectors. Congress did not require presidents to name and count federal civil servants until 1816, when they actually started to become numerous.When it comes to a president’s direct staff—those employees who do not work for a specific federal department or agency—the early numbers are similarly low. John Adams had four servants to run the White House when he moved into the newly constructed residence in 1800, and their duties were largely domestic in nature. The modern White House as we understand it today—a central hub of advisers, support personnel, and policymaking staff—did not emerge until Congress restructured the executive branch in the late 1930s.The Executive Office of the President, or EOP, came into being when Congress enacted the Reorganization Act of 1939 at Franklin D. Roosevelt’s behest. It allowed him to hire up to six assistants and to move certain budgetary and management offices under his personal purview, subject to a congressional veto that was not exercised. When people refer to the “West Wing” as a metonym for the administration, what they really mean is the EOP. (Many of those personnel are actually housed next door at the Harry S Truman Building.)Scharf’s own position in the EOP did not exist until 1943, when Roosevelt hired Samuel Rosenman as the first White House counsel. Congress still requires the EOP to submit annual reports about who works there, their title, and their salary. This is how Americans know, for example, that Scharf was paid $195,200 a year in his previous role as White House staff secretary, a salary he likely retained in his current post.That brings us to Scharf’s misapprehension about congressional oversight. Congress’s oversight power, while considerable, is not an end unto itself. The purpose of oversight and investigations is to allow Congress to obtain the information necessary to enact legislation and make appropriations. Congress could do those things without oversight. One could argue that this is largely how Republicans ran Congress for the last two years: by failing to properly scrutinize all kinds of executive branch malfeasance while continuing to authorize funds for its operations.That funding aspect is essential because Congress itself has few powers to directly compel someone to testify before it. Any contempt of Congress charges would have to flow through federal prosecutors and the Department of Justice. Attorney General Todd Blanche recently described himself as the president’s attorney, so I would not expect him to leap at the opportunity to enforce congressional Democrats’ subpoenas. Congress’s inherent contempt powers are hazy and untested in the courts. So the swiftest way to punish recalcitrant officials is to yank their funding.Scharf and his White House colleagues may serve at the pleasure of the president, of course, but they are paid at the pleasure of Congress. When Democratic lawmakers take control in January, they could zero out the EOP’s budget at their discretion and attach whatever lawful limits they like on its operations. The president’s own salary is constitutionally protected from changes while in office; everyone else is at the mercy of congressional appropriators.Congress does not really pass budgets anymore, but it does pass funding measures through simple majority votes from time to time. The Constitution forbids Congress from funding the military for more than two years at a time, so Trump will need to seek approval from Democrats at least once before his term ends. Lawmakers could attach whatever amendments they see fit to constrain the EOP’s operations. Perhaps they could suspend the salary of any EOP employee who defies a lawfully issued congressional subpoena. Maybe they could reduce the attorney general’s salary by 10 percent every week that he doesn’t comply with one.Congress’s spending authority has structural advantages, as well. Trump could still veto a federal appropriations bill that restricts or defunds the EOP in this way, of course. Democrats might not be able muster a two-thirds majority to override the veto. But that would still not fund the EOP. Trump cannot simply spend the money on White House staff without congressional authorization, at least not practically. A future Democratic president could always sue anyone who took illegally obtained funds to recoup them. Trump could pay the White House staff himself, of course. Early presidents relied on servants and slaves while in office. But I suspect the current president would be unwilling to fund the entire EOP for very long. For the 2026 fiscal year, Congress appropriated $80 million for White House staff salaries. It can un-appropriate them, as well.Trump and his subordinates are used to thinking that the presidency is the central figure in the American constitutional order. This has never been true. In a 2013 interview, then-Justice Antonin Scalia recalled working in the Gerald Ford administration in an era of legislative primacy. “It was a time when people were talking about ‘the imperial presidency,’” he explained. “I knew very well that the 900-pound gorilla in Washington is not the presidency. It’s Congress. If Congress can get its act together, it can roll over the president.” The only question for the next two years is whether Democrats will start rolling.