US midterms: Democrats’ warning to ‘lawyer up’ ripples through Washington

• Democrats are set to use House and Senate control to launch aggressive probes into Trump, his aides and linked firms, with subpoenas, hearings and reports likely.
• Republican lawyers say they have prepared for months and expect more demand for defence work, from Trump allies to bipartisan firms and former officials.
• Both sides expect hard legal fights over executive privilege, subpoenas and contempt, as Democrats focus on issues like self-dealing, consumer harm and affordability.

Within hours of projections on the night of Nov 3 that Republicans would lose control of the US House and Senate, Democrats were enthusiastic about launching investigations into President Donald Trump and the people and companies in his orbit.

“LAWYER UP,” California Representative Robert Garcia, set to lead the House Oversight Committee, warned in an X post.

Oregon Senator Ron Wyden, expected to chair the Senate Finance Committee, offered a one-word prediction: “Subpoenas.” The committee’s Democratic side offered an expletive-laden boost to Wyden’s message: “Let’s f*cking go.”

An array of Republican lawyers said in interviews and statements that they have been preparing for this scenario well in advance of Election Day, while also noting that subjects of these investigations will have different legal needs.

Ex-White House and Justice Department officials may be primed to serve as ideologically-aligned brawlers. Veteran white-shoe law firm partners could provide more traditional counsel.

Some GOP attorneys are touting bipartisan ties for clients hoping for friendlier relations with Democrats.

‘Growth industry’

“For the last few months as a lawyer in DC you start to see these not-so-subtle shifts and announcements within law firms, like, ‘So and so is now going to be handling government affairs,’ and it’s a person that’s obviously a Republican,” said James Trusty, a former personal defence lawyer for Trump.

GOP lawyers are “reading the tea leaves and thinking this is going to be a growth industry for a couple of years”.

Asked if he would be open to representing Trump again, Trusty said that he “wouldn’t hesitate for a moment” if, for instance, Democrats pursued what he considered “frivolous” impeachment charges. 

The Justice Department and White House counsel’s office handle many aspects of responding to congressional investigations into the executive branch, but officials and federal employees may bring on outside counsel if they are concerned about personal legal exposure.

According to multiple Republican attorneys, some of the potential candidates to defend targets of Democrat-led probes include former Justice Department chief of staff Chad Mizelle; Jesse Binnall, who has represented Trump and other prominent conservatives; long-time Washington government investigations lawyers Matthew Martens and Reginald Brown; David Warrington, who recently stepped down as Trump’s White House counsel; and broadly, partners at law firms that settled with Trump in his crackdown on Big Law.

Binnall said that “congressional oversight is a vital tool when used for legitimate legislative purposes, but it is not a license to harass political opponents”.

He added “if incoming congressional leadership believes otherwise, they are in for a rude awakening”.

Martens, whose firm successfully challenged one of Trump’s executive orders, struck a neutral tone, saying that “these cases require a delicate balancing of legal considerations and political realities, and the two can often be at cross-currents”.

Mizelle, Brown and Warrington did not return requests for comment on Nov 4.

Aggresively deploy

Democrats have a predictable set of legal tools to work with, but are expected to aggressively deploy them in light of their sweeping midterm wins.

They can make requests for voluntary testimony or document productions from federal officials, corporate officers and other individuals, issue compulsory subpoenas, hold closed-door or televised hearings, issue reports and even make criminal referrals.

White House spokesperson Lauren Bis said in a statement that Trump is “willing to work with anyone to continue delivering victories for hardworking Americans,” and that “if Democrats choose to pursue sham investigations and radical left policies, they are choosing to work against the American people”.

Public statements and information demands from Democrats over the past two years offer a roadmap for future investigations.

They have expressed interest in exploring whether Trump or top officials have used their power to financially enrich themselves, companies that made deals with the administration or have ties to the President and his family members, and a host of other controversial administration actions – the Iran war, immigration enforcement crackdowns and Elon Musk’s Department of Government Efficiency effort and agency firings, to name a few.

“It’s very clear that Democrats are going to be very aggressive,” said Abhi Kambli, who joined Republican-aligned firm Holtzman Vogel this summer after stepping down as a senior Justice Department official. “We have been gearing up for what 2027 looks like.”

Kambli’s clients include Peter Navarro, a senior trade counsellor to Trump who is pursuing a long-running effort to overturn his Biden-era conviction for contempt of Congress.

Kambli has asked the US Supreme Court to hear Navarro’s case after he lost in lower courts, and said they’re hoping to secure new precedent that raises the bar for such prosecutions.

‘Get along’

Rod Rosenstein, who served as deputy attorney-general during Trump’s first term and ended up facing the President’s ire, said his firm’s congressional investigations practice is deliberately bipartisan; he co-leads it with a partner with Democratic ties, Allison Murphy.

Rosenstein said they have clients who received letters from congressional Democrats over the past year seeking information and are working with them to prepare for those to escalate to subpoenas.

Faced with the prospect of “contentious hearings,” he said, “it’s important that you pick a lawyer who knows how to get along with everybody”.

Diana Shaw, a former acting inspector general at the State Department whose practice now includes congressional oversight, said she expects Democrats to steer probes in directions that align with issues that drove the party’s electoral success, such as affordability, and to be wary of inviting criticism that they are spending too much time on Trump alone.

“If, for instance, there’s an opportunity for Garcia to pursue a consumer harm angle and also manage to hit some self-dealing or pay-to-play angle at the same time, that’s going to make for a very attractive target for oversight,” she said.

The Justice Department said in a statement that officials have followed the law and “are not afraid of threats from Democrats on the Hill,” and accused members of “weaponisation efforts”.

Republican legal defence strategies could take a variety of forms. They could try to negotiate with Democratic committees for more favourable testimony conditions – to keep interviews off camera, limit the amount of time and have the questioning take place away from Capitol Hill.

The White House can make executive privilege claims to shield conversations between Trump and his advisers, including individuals outside of the administration under a recent controversial opinion from the Justice Department’s Office of Legal Counsel.

Investigative authority

Subpoena fights have landed in the federal court in Washington, DC, over the years, but the bar is high to win challenges to how congressional lawmakers exercise their investigative authority.

Judges rebuffed several cases filed contesting subpoenas issued as part of a special House investigation into the Jan 6, 2021, attack on the US Capitol and Trump’s efforts to overturn his 2020 election loss.

Democrats do not expect to have an ally in Attorney-General Todd Blanche if the subjects of investigations are not cooperative.

Still, Peter Rechter, who handled oversight matters for congressional Democrats and in the Biden administration, said Republicans should not ignore requests or subpoenas because the statute of limitations for offences such as contempt of Congress can extend past Trump’s final two years in office.

Shaw, now a partner at Wiley along with Rechter, predicted Democrats would have little patience for drawn-out timelines and would seek to enforce investigation demands with “more fervour”.

“I don’t think we’re going to see the same cadence to the dance that has existed in the past,” she said. BLOOMBERG