White House adviser warns Democrats against subpoenas, cites Constitution

The president’s lawyer, William Scharf, sent a letter to California Democratic Rep. Robert Garcia, a ranking member of the House Committee on Oversight and Government Reform, on November 9, warning Democrats not to infringe on their powers to investigate and subpoena.

The letter cautioned Democratic lawmakers to remind them of the “fundamental limits the Constitution places on Congressional investigations and subpoenas” and suggested their actions could cross the line into criminal misconduct. Garcia, who is set to chair the committee next year when Democrats gain a majority in the House, responded to the letter by suggesting the president had “something to hide.”

Legal experts across the political spectrum who spoke to Fox News Digital suggested that while the White House has the right to challenge individual subpoenas, it faces significant hurdles if it decides to seek criminal charges related to Garcia’s surveillance activities.

“In short, the administration can assert privileges, negotiate demands, and challenge particular subpoenas through the appropriate legal process, but criminal prosecutions are, to mix metaphors, a very different animal that runs up against a higher bar,” Ilya Shapiro, director of constitutional studies at the center-right Manhattan Institute, told Fox News Digital.

AG BLANCHE CONFRONTS ANCHOR ASKING IF IT’S HIS “JOB” TO DEFEND THE TRUMP ADMINISTRATION

Will Scharf during an executive order signing in the Oval Office of the White House in Washington, DC, Thursday, August 6, 2026. (Aaron Schwartz/CNP/Bloomberg via Getty Images)

Congressional investigations also enjoy protections under the Constitution’s Speech or Debate Clause, which the Supreme Court has ruled protects lawmakers from judicial interference when their investigative activities fall within the legitimate legislative sphere.

Shapiro explained that Democrats who “promise subpoenas indiscriminately invite challenges to their demands” because congressional committees “must act within their jurisdiction, respect the constitutional rights of witnesses, and connect investigations to a legitimate legislative purpose.”

Garcia maintains, however, that his calls for an investigation are entirely consistent with his constitutional authority as a lawmaker.

“Let us be clear: Congress’s authority comes from Article I of the Constitution, not authorization from the White House. Congress has broad latitude to conduct investigations and oversight, an authority inherent in the power to legislate,” Garcia said in his statement.

“The American people voted overwhelmingly for us to pass laws to root out corruption and abuse. The Trump administration continues to weaponize the government with threats of unconstitutional attacks on Congress. We are a co-equal branch of government and will not be deterred by baseless threats from an armed Justice Department or the president’s lawyers,” Garcia said.

Scharf sent the letter a week after Democrats released statements and social media posts calling for subpoenas and impeachment trials for Trump administration officials after Republicans suffered a major loss in the 2026 midterms. At the time, some pointed out that Republicans had used similar language to call for investigations into Democratic officials.

Hans von Spakovsky, senior counsel at Advancing American Freedom and an expert on constitutional law, told Fox News Digital that Scharf was correct in his assertion that Garcia’s investigations cannot be motivated by simple spite, but suggested the White House could run into problems if it tried to make the criminal charges stand.

“Scharf is correct in citing the case of Watkins v. United States, where the Supreme Court held that congressional investigations unrelated to a legitimate legislative purpose and whose sole intent is harassment and attempted seizure of personal and private information are unconstitutional and beyond the power of Congress,” von Spakovsky wrote in an email. “The problem is, I’m not sure what criminal laws, if any, might be enforced. There are laws on harassment of federal officials, 18 USC 111, 115, but those require physical threats. What the Watkins precedent holds is that courts cannot enforce subpoenas issued by Congress that are part of an improper and unconstitutional investigation.”

TOP COMMITTEE DEM RECALLS AFTER WHITE HOUSE COUNSEL WARNS AGAINST EXAGGERATED SCOPE AMID INVESTIGATION THREATS

The new head of the House Oversight Committee, Rep. Robert Garcia, has warned that Democrats could investigate President Donald Trump’s pardons as well as the president’s allies. (Alex Wong/Getty Images)

“There is no law that makes surveillance a crime, and Scharf’s letter does not say so. His point is that a committee process does not protect conduct that would be a crime for anyone else. Conspiring to intimidate federal agents from doing their jobs falls under 18 USC 372,” Will Chamberlain, senior counsel for the center-right Article III Project, told Fox News Digital. “Congressional oversight authority is broad but not unlimited. Congress does not have the power to blow the whistle for the sake of blowing the whistle and any investigation requires a valid legislative purpose. Congressional investigative activities conducted in an official capacity would not be actionable.”

He added that what could be prosecuted would be a separate plot to intimidate federal officials “highlighted by threats, press releases, things of that nature.”

Molly Nixon, a senior fellow at the libertarian Cato Institute, had broadly similar thoughts.

“The White House advisor is correct that the courts have required that congressional investigations serve a legitimate legislative purpose, although the constitutional boundaries of that requirement are not as clear as Scharf asserts. I don’t think the letter is on solid ground when it takes the plunge and suggests potential criminality,” she told Fox News Digital.

DEMS PIVOT OF “AFFORDABILITY” PITCH AT DHS PROBES THREATS AFTER MID-TERM VICTORY

U.S. Representative Robert Garcia, Democrat of California, delivers remarks to the media outside the House Democratic Caucus meeting in the Longworth House office building November 10, 2026 in Washington, DC. (Aaron Schwartz/Getty Images)

“We are monitoring the abusive and capricious threats that are now proliferating from Democratic lawmakers who seek to abuse the legislative process to intimidate and interfere with the lawful operation of government. Recent public statements underscore these concerns. You and your colleagues in Congress have asserted that they will issue subpoenas to harass, threaten, and deter dedicated members of the Administration from continuing their duties,” Scharf wrote.

“Mandatory process is a power available to Congress for oversight functions, and oversight functions only. The abusive threats and public statements regarding the indiscriminate issuance of subpoenas, as well as threats directed at potential targets within the Administration, make clear that any future investigative process will be deployed to harass and augment, rather than advance a legitimate legislative end,” the letter continued.

“In addition to being inconsistent with clear and well-recognized constitutional limitations on your investigative functions, threats against executive branch officials intended to deter them from public service, or processes intended simply to abuse or instill fear in the recipient may cross the line into blatant criminality,” the letter continues. “And issuing illegal subpoenas with the intent of depriving citizens of their constitutional rights and privileges could warrant further investigation.”

However, these deeper investigations are unlikely to result in criminal charges, according to Devon Ombres, senior director for courts and legal policy at the left-of-center Center for American Progress.

“You know, I don’t think there’s a reasonable basis for the administration to claim that Congress can’t discharge its constitutional oversight obligations, and I can’t imagine that there’s any type of criminal law that would apply in this context,” he said in a phone call. “That’s not to say the DOJ won’t try to introduce something, as it has done before, but I don’t think Scharf has a legal position to rely on.”

Although criminal charges would face significant legal hurdles, Ombres says he fully expects the Trump administration to try to block the subpoenas through lawsuits.

CLICK HERE TO DOWNLOAD THE FOX NEWS APP

“The White House and DOJ are going to throw everything, including the kitchen sink, at subpoenas,” Ombres said.