The Trump administration is building a formidable legal shield against potential Democratic congressional investigations ahead of the November midterm elections, with the Justice Department asserting unprecedented claims of executive privilege that legal experts warn represent an extreme expansion of presidential secrecy.

In a controversial opinion issued by the Office of Legal Counsel earlier this month, the Department of Justice declared that President Trump can assert executive privilege over communications with advisors even if they do not work at the White House or within the government at all. The timing is significant, arriving just months before Democrats hope to reclaim subpoena power if they win control of one or both chambers of Congress.

Preemptive Strike Against Investigations

Legal analysts describe the OLC memo as a "devious tactic" designed to preemptively interfere with congressional investigations that Democrats plan to launch if they take control after the midterms. The opinion extends executive privilege protections to communications with private citizens, as long as those communications "relate to official presidential decisionmaking" and involve or reflect exchanges with the president or his direct advisers.

Jonathan Shaub, a University of Kentucky School of Law professor who served in the Obama administration's OLC, told CNN that while the position is not necessarily inconsistent with past OLC thinking, "it's never been stated publicly, because the office understands how extreme this is outside the world of OLC."

Lessons from First Term Battles

The move reflects lessons learned from Trump's first term, when Democrats took over the House in 2018 and launched sweeping investigations into both the president's personal conduct and his administration's actions. Those probes prompted fierce legal battles over what information lawmakers could obtain, with the Trump administration frequently asserting executive privilege and ordering officials not to comply with congressional subpoenas.

If congressional Democrats regain investigative power this November, they could face an even more recalcitrant executive branch armed with new legal theories designed to wall off vast swaths of information from congressional scrutiny. The administration is also challenging records laws and expanding its interpretation of presidential privilege in ways that critics say threaten congressional oversight powers established under the Constitution.

Unprecedented Control and Election Interference

The American Progress think tank has accused the Trump administration of interfering in the 2026 midterm elections "to entrench the imperial presidency." In an analysis published earlier this month, the organization argued that Trump has seized unprecedented control over the federal government and is executing a plan to subvert democratic accountability.

Trump himself has never taken kindly to losing elections, frequently citing bogus claims of mass voter fraud to explain away defeats. Ahead of the 2026 midterms, he is already laying groundwork to blame the GOP if Republicans lose seats, while simultaneously pushing false claims about noncitizen voting that could set up challenges to election results.

Constitutional Showdown Ahead

While OLC memos do not have the weight of a court opinion, they control how the executive branch views the law absent a contradictory court order. The question of whether privilege protects communications with private advisers has never been directly tested in federal court, meaning any Democratic attempt to obtain such records would likely trigger protracted litigation.

The administration's aggressive stance on secrecy represents what some scholars describe as a departure from established norms, pushing the boundaries of executive power in ways that could fundamentally alter the balance between Congress and the presidency. Whether federal courts will accept these sweeping privilege claims remains to be seen, but the legal battles are certain to extend long past election day.