How House Democrats' 'deterrence message' on Trump jobs could backfire
Sen. Elissa Slotkin's warning to young Americans not to join the Trump administration could backfire by handing Trump officials legal ammunition to derail the investigations Democrats hope to launch if they retake Congress, a former federal prosecutor warned.
The freshman Michigan Democrat said last month that she wants her party to pursue "signature cases" against officials who helped Trump, reasoning that it would discourage young Americans from considering jobs in his administration.
"I want that deterrence message sent," Slotkin said during an Oct. 13 event at the University of Chicago, describing how young graduates might fear "buying myself a ton of problems" by joining the administration.
But Abhishek Kambli, a former deputy associate attorney general in Trump's Justice Department, said Slotkin's remarks could backfire if Democrats retake either chamber of Congress in the midterm elections and gain greater control over congressional investigations.
"If they just throw in boilerplate language that this is for legislative purpose, anyone challenging those subpoenas will have that entire record to demonstrate that it's anything but that," Kambli, a partner at Holtzman Vogel, told Fox News Digital.
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While Congress has broad authority to conduct investigations, subpoena witnesses and review government operations, the Supreme Court has ruled that lawmakers cannot use those powers solely to punish individuals.
The Supreme Court confronted those limits in 2020, when House Democrats attempted to obtain Trump's personal financial records through congressional subpoenas.
In Trump v. Mazars, the justices established a four-factor test requiring courts to examine whether Congress demonstrated a legitimate legislative need for the records, whether its requests were sufficiently narrow, whether the information could be obtained elsewhere and what burden the subpoenas would impose on the president.
The court sent the dispute back to lower courts without ruling that the subpoenas satisfied those standards, leaving unresolved questions about how the framework would be applied.
"So it's not enough just to tack on a legislative purpose," Kambli said, arguing that courts must look beyond Congress' stated reasons for an investigation to determine whether its demands are constitutionally justified.
Democrats' public remarks could become evidence against them if future subpoenas are challenged, according to Kambli.
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"They don't have to bury their head in the sand," Kambli said of the courts. "I think they have to look at the facts of the case and look at it in terms of how they fits into the broader comments that they made."
House Democrats are already laying the groundwork for investigations into Trump's family business dealings and potential conflicts of interest if they regain control of Congress. Sen. Richard Blumenthal, D-Conn., has also vowed to expand his investigation into donors funding Trump's White House ballroom if Democrats retake the Senate,
But another constitutional law expert questioned whether Democrats' remarks would carry enough legal weight to undermine future congressional investigations.
Michael Morley, a professor at Florida State University College of Law, said courts generally recognize that politicians bring partisan motivations to congressional investigations and would be reluctant to invalidate subpoenas merely because of provocative public remarks.
"I don't think that the fact that there might be partisan motivations for a congressional investigation would ultimately be a valid basis for refusing to comply with a subpoena," Morley told Fox News Digital.
"At the end of the day, a court is going to be very reluctant to conclude, based on one or more members' possible subjective motivations, that Congress lacks constitutional authority to investigate," Morley said.
He also emphasized that Trump v. Mazars focused specifically on subpoenas for the president's personal records, arguing that applying the same heightened legal standards to subpoenas targeting other administration officials would be a stretch.
But Morley said Slotkin's language could give judges pause when the legal basis for a subpoena is already uncertain.
"It's bad atmospherics," he said, adding that such statements could make courts "marginally less likely" to resolve doubts in Democrats' favor.
Slotkin has rejected accusations that she wants to target Americans merely for working for Republicans. She told CNN that she was talking about officials who break the law or misuse taxpayer dollars, calling the criticism "manufactured outrage."
But Kambli warned the consequences could extend beyond whether Democratic subpoenas survive legal challenges, saying that investigations could inflict financial and reputational damage even without criminal charges.
"There is the idea that the process is the punishment, and there is no doubt that some members of Congress intend to use the process to bankrupt people that can't afford legal representation," Kambli said.
He also said that while Trump's Justice Department would be unlikely to prosecute administration officials over criminal contempt referrals from a Democratic-controlled Congress, that could change under a future Democratic administration.
Morley also criticized the prospect of intimidating young government employees who may lack the resources to defend themselves.
"That's just not how we want our political disputes to be handled," Morley said.