White House Counsel Will Scharf Tells Robert Garcia Some House Oversight Could Be Criminal

The White House counsel, Will Scharf, wrote to Representative Robert Garcia in a letter dated Monday 9 November that some investigations House Democrats have promised could “cross the line into blatant criminality.” Supreme Court rulings limit what a congressional subpoena may be used for, but they also treat issuing one as protected legislative work.

Mr Garcia, a California Democrat, is the top Democrat on the House Oversight Committee and is expected to chair it when his party takes the majority in January. The letter was first reported by Punchbowl News, according to the Associated Press. Neither the AP nor NBC News published the full text, and The 13th Bell has not seen it; the passages below are those the two outlets quoted. The sentence that carried the warning reads, in full as quoted by the AP: “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.”

What the letter says, as quoted

That the administration is “monitoring” what Mr Scharf called Democrats’ “abusive and capricious threats” to open investigations, NBC reported, and that Democrats mean to use the legislative process to intimidate officials and interfere with “the lawful functioning of government.” The letter cited Supreme Court rulings holding that investigations must serve a legitimate legislative purpose and may not be used to punish opponents, NBC wrote, without naming the cases or any criminal statute. As evidence of intent it cited two Democratic members: Representative Analilia Mejia of New Jersey, who wrote on X, “We’re going to toss out subpoenas like Mardi Gras beads,” and Representative Emily Randall of Washington, who said subpoenas would be passed out “like candy.”

Mr Garcia replied that “Congress’ authority comes from Article I of the Constitution, not from the permission of the White House,” and that oversight is a power that comes with the power to legislate. Hakeem Jeffries, the Democratic leader expected to become Speaker, called the letter “outrageous” and said it was wrong on the facts, the law and the Constitution. Attorney General Todd Blanche, asked about it in Missouri, said: “Congress has oversight authority. It always has, it always will,” the AP reported.

What has the Supreme Court actually held?

Two separate things, and the letter’s argument depends on which one applies. The first line of cases limits the subpoena. The second protects the member who issues it. The table is this publication’s compilation from the opinions; the McGrain, Quinn and Watkins passages are as the Court itself restated them in Trump v. Mazars USA in 2020.

The letter’s premise sits in the first group. Watkins says in terms that investigations “conducted solely for the personal aggrandizement of the investigators or to ‘punish’ those investigated are indefensible,” and that is close to what Mr Scharf alleges. But the remedy the Court has always applied to an indefensible subpoena is that it is unenforceable. The recipient declines, and a court decides, in a contempt prosecution or an enforcement suit, whether the subpoena had a valid purpose. Mazars itself reached the Court that way: the President, in his personal capacity, went to court to contest the Oversight Committee’s subpoena to his accounting firm, and the Court sent the case back with a test rather than a crime.

Where could criminality come in?

Only outside the legislative sphere, on the Court’s reading. The Constitution provides in Article I, Section 6 that “for any Speech or Debate in either House,” members “shall not be questioned in any other Place.” Eastland held that a Senate subcommittee’s subpoena, its members and its chief counsel were all protected, which leaves no prosecution for the act of issuing one. Gravel marks the edge: a member’s conduct outside the deliberative process, such as arranging private publication of committee material, is not covered.

The letter’s other target, threats meant to deter officials from serving, reads closest to a federal crime that already exists. Section 372 of Title 18 punishes two or more people who conspire to use “force, intimidation, or threat” to stop a person accepting or holding a federal office or carrying out its duties, with up to six years in prison. Mr Scharf did not cite it, as far as the published excerpts show, and the statute requires an agreement to use force, intimidation or threats, which a subpoena served under a House rule is not on any reported reading. That is this publication’s comparison of the quoted language with the statute; the letter itself may say more.

The quotations offered as evidence are also of a particular kind. “Like Mardi Gras beads” and “like candy” describe volume, and volume is not the test in any of the six cases. The question Watkins and Mazars ask is subpoena by subpoena: what legislation it relates to, and whether the information is needed for it. None of those subpoenas exists yet.

When could the first one be issued?

Not before 3 January 2027, when the Twentieth Amendment begins the new Congress at noon, 55 days after the date on the letter by our count. The House must first elect a Speaker and adopt its rules, and its committees must organise under new chairmen, while the Republican minority will be led by Jim Jordan, the current Judiciary Committee chairman. Until then the letter is an argument about investigations that have not been authorised, addressed to a member who cannot yet authorise them. Whether the hearings that follow produce a usable record, rather than the five-minute clips this publication has described, is a question the Court’s cases leave to the House.