White House counsel Will Scharf warned the senior Democrat on the House Oversight Committee that some actions by lawmakers investigating the Trump administration could warrant criminal scrutiny. Rep. Robert Garcia rejected the warning Wednesday, Nov. 11, saying in a public statement that Congress has independent authority to investigate the executive branch.

Scharf’s letter, dated Monday and made public Wednesday by Punchbowl News, came after Democrats won control of the House and Senate in the midterm elections. Garcia is expected to lead the House panel when the new Congress convenes in January. The letter sets out the White House’s objections ahead of that change in power; it does not announce criminal charges or a court ruling about any subpoena.

What Scharf warned about

Scharf wrote that congressional inquiries must serve a legitimate legislative purpose. He argued that threats meant to drive officials out of public service, or compulsory demands used only to frighten or abuse their recipients, could cross a legal line. He also wrote that issuing unlawful subpoenas with the intention of depriving someone of constitutional rights could warrant investigation, according to the letter as reported by Punchbowl and the Los Angeles Times.

The warning followed Garcia’s public advice after the election that administration officials should retain lawyers. Scharf presented that kind of rhetoric as evidence of a possible improper purpose. Garcia told reporters Wednesday that his warning was aimed at people who had abused public trust, according to the Associated Press. The two sides disagree over the purpose of investigations that the incoming majority has yet to conduct.

Garcia says oversight will go forward

Garcia said Congress’s authority comes from Article I of the Constitution and that oversight can inform laws to address corruption and abuse. He accused the administration of trying to intimidate lawmakers. Democrats are preparing to examine subjects including immigration enforcement, the handling of the Jeffrey Epstein investigation and White House construction, the AP reported. Those are areas lawmakers have identified for inquiry, rather than findings of wrongdoing.

Rep. James Comer, the Kentucky Republican who currently chairs the committee, told the AP on Wednesday that he had not yet read Scharf’s letter. He criticized Garcia’s remarks but said that the panel has an independent role in checking the executive branch, regardless of which party controls the White House. Attorney General Todd Blanche, who had earlier raised the possibility of an investigation if remarks became threatening, said this week that the administration would continue working with Congress on oversight requests.

Where congressional subpoena power has limits

The Oversight Committee describes its jurisdiction as extending across much of the federal government. Hearings and document requests can help lawmakers decide whether laws, spending or agency practices need to change. A subpoena is different from a voluntary request: it compels testimony or the production of records. The panel’s current rules govern how its members can authorize and issue subpoenas in this Congress. They authorize the chair to issue subpoenas for investigations within the panel’s jurisdiction. The rules also allow the chair to order sworn depositions after consulting the ranking minority member. Which procedures apply in January will depend on the rules adopted for the new Congress.

In its 2020 Mazars decision, the Supreme Court reaffirmed the requirement that a congressional subpoena further a legitimate legislative task. It also said courts reviewing demands for a president’s personal information must weigh separation of powers concerns. Among other factors, the court said judges should consider whether Congress could get what it needs elsewhere and whether the request is broader than reasonably necessary. That case involved a president’s personal records; its specific test should not be read as a ruling on every request for agency documents or testimony.

The decision also distinguishes congressional investigation from law enforcement. Lawmakers may seek information to inform legislation, but a committee does not determine criminal guilt. Conversely, an allegation from the White House that an inquiry would be improper does not establish that a court would agree. The purpose, scope and recipient of a particular demand would matter if its validity were challenged.

What changes when the House majority turns over

Democrats’ election gains give them the House majority in the next Congress and with it the ability to set the committee’s agenda. For now, Comer remains chair and Garcia remains the panel’s ranking Democrat. The dispute is over how the incoming majority will use powers it has not yet taken over, and how the White House will respond once lawmakers make specific requests.

The first concrete test will come when the committee identifies the records or testimony it wants and explains what it is trying to learn. The administration could provide information, negotiate over the scope of a request or object to it. Wednesday’s exchange shows both sides are preparing for that dispute, but leaves unanswered which requests they will contest and whether any will reach court.