The first six months of the second Trump administration has been a firehose of activity, with a seemingly unending supply of executive actions, legislative inquiries, and legal controversies. With Republicans in control of both the House and Senate, efforts to conduct oversight of the executive branch have been largely limited to investigations into the Biden administration or investigations designed to justify President Donald Trump’s policies, such as the House Oversight Committee’s investigation into recipients of Greenhouse Gas Reduction Fund grants. For their part, Democrats have been sending countless oversight letters raising due process concerns, highlighting the harms that may result from defunding key federal programs, and focusing attention on the lack of transparency and potential misconduct by individuals across the Trump administration.
The political alignment between Congress and the White House has brought to the fore a number of fascinating constitutional, procedural, and policy questions. Institutional norms are being set aside or rethought, while new events and inquiries continue to test the bounds of legislative and executive branch authority. Here, we take stock of three emerging legal issues affecting the law of congressional oversight and separation of powers: executive privilege and comity between current and past presidents, what rights each branch of government has to another branch’s physical space, and Congress’ new tendency to draw inferences of wrongdoing based on assertions of the Fifth Amendment right against self-incrimination.
Executive Privilege and Presidential Comity
The question of what deference, if any, a sitting president owes his predecessor regarding privilege has become increasingly salient in recent weeks as the White House tries to force former Biden aides to provide testimony to congressional investigators. On July 8, the White House notified former White House physician Dr. Kevin O’Connor that it would waive executive privilege over O’Connor’s testimony, which was subpoenaed by the House Oversight Committee in connection with its probe into the health of former President Joe Biden. The committee is looking into allegations by Trump that Biden’s aides used an autopen to conceal Biden’s cognitive decline (the “Biden Autopen Probe”). In its letter authorizing O’Connor to give “unrestricted testimony,” the White House noted that “the unique and extraordinary nature of the matters under investigation” rendered “an assertion of executive privilege . . . not in the national interest.” The White House also cited “Congress’ constitutional and legislative powers” to investigate the matter as justifying waiver of the privilege.
White House officials have waived executive privilege over documents and information concerning the incumbent president in a variety of congressional investigations over the years. However, Trump’s decision to waive executive privilege in the Biden Autopen Probe represents one of the few instances since the enactment of the Presidential Records Act in 1978 that an incumbent president has proactively – that is, not in response to a court order – waived executive privilege over documents or testimony concerning alleged misconduct by their predecessor. Notably, the last time such a waiver occurred was when Biden waived executive privilege over documents and testimony concerning the January 6 Capitol Attacks. That situation, unlike Trump’s waiver here, involved an explicit assertion of executive privilege by then-former President Trump. Notwithstanding that assertion, Biden assessed that “an assertion of executive privilege is not in the best interests of the United States” because the “insurrection that took place on January 6, and the extraordinary events surrounding it, must be subject to a full accounting to ensure nothing similar ever happens again.” Similar to what Trump is doing now, Biden invoked Congress’ “compelling need in service of its legislative functions” to investigate the matter.
Another of the rare instances since the enactment of the Presidential Records Act of an incumbent president waiving executive privilege over materials concerning their predecessor was in 2009, when President Barack Obama disclosed Department of Justice Office of Legal Counsel opinions and other materials on “enhanced interrogation techniques,” or torture methods, over which his predecessor had asserted executive privilege. Unlike Biden’s and Trump’s waivers, Obama’s wavier was premised on the information in the memoranda already being largely in the public domain. In the release, Obama explained that “the interrogation techniques described in these memos have already been widely reported” and “the previous Administration publicly acknowledged portions of the program – and some of the practices – associated with these memos.” Although Obama described his moral and policy opposition to the subject matter being disclosed, he explicitly disclaimed that policy rationale as the reason for disclosure. Moreover, that waiver, like Trump’s waiver over the O’Connor testimony, did not entail a renewed assertion of executive privilege over the materials by the former president.
The waivers by Biden and Trump are noteworthy in a number of respects. First, they suggest an emerging trend of incoming presidents finding new rationales to forego a longstanding institutional privilege. Executive privilege is one of the few tools a White House possesses to insulate itself from external scrutiny that might interrupt its ability to operate. Historically, White Houses across administrations jealously guarded their authority to protect confidential communications from public scrutiny, in large part to preserve such authority in any future interbranch dispute that might implicate genuine policy or other sensitivities. In both Trump’s and Biden’s waivers, however, the disclosure decisions run counter to those downstream institutional prerogatives. Trump’s assertion of “the unique and extraordinary nature” of the Biden Autopen Probe echoes Biden’s assertion that “the extraordinary events surrounding [January 6] must be subject to a full accounting.” Although the factual underpinnings of these waiver decisions differ markedly, both reflect legal judgments that are consistent with more immediate political and policy priorities. They both create precedent that loosens the obligations of comity felt by future administrations to their predecessors. Trump’s policy determination to waive this important privilege could be used against his administration in future interbranch disputes by Congress seeking to conduct oversight of the White House.
This development also raises important questions of what obligations and norms, as an institutional matter, an incumbent president should honor. The nature of the executive branch is one of constantly changing political hands. Regardless of policy priorities, executive privilege remains an important tool in enabling White House officials to carry out their functions. As the Supreme Court has repeatedly acknowledged, executive privilege “is necessary to provide the confidentiality required for the President’s conduct of office,” allowing an “assurance of confidentiality” that is necessary to facilitate “full and frank submissions of facts and opinions.” Creating a precedent whereby White House communications are only confidential unless and until a new political party enters the White House could serve to significantly frustrate the very purpose of the privilege, and chill speech among White House advisers. On the other hand, a diminishment in this privilege would offer a valuable tool for congressional investigators, non-governmental organizations seeking transparency and accountability, and the general public seeking to understand in greater detail the inner workings of the White House.
Finally, although Biden has not attempted to assert executive privilege over O’Connor’s testimony, the proactive wavier of executive privilege by Trump raises important legal questions about whose view would win out in the event the former president sought to challenge the disclosure. Although the executive privilege belongs to the Office of the President, rather than a president in his individual capacity, the Supreme Court has held that former presidents retain a right to assert the privilege over documents generated during their tenure for some period of time after they leave office. This issue was recently litigated – though not conclusively – in Trump v. Thompson. In that case, the D.C. Circuit rejected Trump’s attempt to halt the disclosure of records concerning the January 6 assault on the U.S. Capitol over which he believed executive privilege applied, but over which Biden had determined an assertion of executive privilege was not justified. The D.C. Circuit suggested that in the event of a dispute between a former president and incumbent president over executive privilege, the incumbent president’s determination would win out.
On appeal, however, the Supreme Court issued an unusual memorandum denying Trump’s application to stay the D.C. Circuit’s ruling, in which the Court explicitly noted the D.C. Circuit’s opinion should be considered non-binding dicta to the extent it opined on “whether and in what circumstances a former President may obtain a court order preventing disclosure of privileged records from his tenure in office, in the face of a determination by the incumbent President to waive the privilege.” Justice Brett Kavanaugh went even further, issuing a “statement respecting denial of application” in which he articulated his view that “[a] former President must be able to successfully invoke the Presidential communications privilege for communications that occurred during his Presidency, even if the current President does not support the privilege claim,” because “[c]oncluding otherwise would eviscerate the executive privilege for Presidential communications.” This unusual Supreme Court Memorandum makes clear that the question of whose assertion of executive privilege wins out in the event of a dispute between current and former presidents is very much an open and live question, on which at least one Supreme Court justice has a clear view.
Interbranch Disputes Over Access to Legislative and Executive Branch Spaces
Recent events in the immigration space have raised the critical, but often overlooked, question of what rights each branch of government has to access – and carry out its own operations in – the physical spaces of the other branch.
DHS Ability to Operate in Congressional Spaces: On May 25, agents from the Department of Homeland Security (DHS) entered Representative Jerry Nadler’s district office in Manhattan to conduct what they called a “security check” in response to reports of protesters inside the office. In the course of doing so, they handcuffed a congressional staffer whom they claimed was “verbally confrontational” and “block[ing] access” to the office. Nadler condemned the move as demonstrating “a deeply troubling disregard for proper legal boundaries,” noting that “[i]f this can happen in a Member of Congress’s office, it can happen to anyone–and it is happening.” Although the situation ultimately deescalated and no arrests were made, the confrontation underscored a view that DHS may access congressional offices without a warrant or consent by the member of Congress.
As a general matter, DHS is free to operate in public spaces without a warrant. Such public spaces are typically understood to encompass public roads, sidewalks, and airports, among other areas. Although many portions of government buildings are typically considered accessible to the public, it is reasonable to presume there must remain private areas within those buildings where, for example, government officials may engage in confidential discussions and decision-making. For civilians and private companies, a reasonable expectations of privacy can extend to their office space, and the same could be true for lawmaker’s offices. Even aside from Fourth Amendment considerations, Congress’ constitutional Speech and Debate privileges would likely offer a further layer of privacy to these spaces. However, the question of whether an individual member of Congress’ office in their home state is a “public space” for purposes of law enforcement access has not been squarely addressed by the Supreme Court, and there is a dearth of caselaw on reasonable expectations of privacy in the context of congressional offices.
DHS’s recent attempts to assert its immigration authority in Nadler’s district office, and over his staff member as she went about her legislative work, raise important questions about where, in a congressional office, DHS operational authority ends. Given the complex interplay of constitutional provisions and operational considerations, and the unique public-private nature of congressional offices, this issue is increasingly likely to be the subject of exploration as DHS continues to carry out aggressive immigration enforcement operations across the country, including in congressional spaces.
Congressional Ability to Conduct Oversight in DHS Spaces: By the same token, DHS’ recent detentions and arrests of members of Congress have highlighted the department’s apparent view that members of Congress lack plenary authority to conduct oversight of physical DHS spaces.
Section 527 of the 2024 Further Consolidated Appropriations Act prohibits DHS from denying members of Congress and their staff access to “any facility operated by or for the Department of Homeland Security used to detain or otherwise house aliens.” The legislation does not distinguish between ICE field offices, large detention centers, or correctional centers, and is best understood as applying to any facility used by ICE to detain people. Moreover, federal law prohibits DHS from “requir[ing] a Member of Congress to provide prior notice of the intent to enter a facility…for the purpose of conducting oversight.” In recent months, however, there have been a series of instances in which DHS has blocked Democratic lawmakers from accessing its facilities, in some cases even detaining or arresting these lawmakers in dramatic confrontations.
In June, DHS issued revised guidance regarding “Facility Visit and Engagement Protocol for Members of Congress and Staff.” Among other things, the guidance asserts that Section 527 does not apply to “ICE Field Offices,” which “are not detention facilities” and therefore “require advance coordination via OCR [the ICE Office of Congressional Relations].” This guidance was issued amidst reports that ICE was using its field offices to detain individuals, even if for brief periods of time. In the guidance, however, DHS asserted that “ICE does not house aliens at field offices.” The guidance also specified that for ICE facilities it considered subject to Section 527’s requirements,
ICE will make every effort to comply with the law and accommodate Members seeking to visit/tour an ICE detention facility for the purpose of conducting oversight, but exigent circumstances (e.g., operational conditions, security posture, etc.) may impact the time of entry into the facility.
Prior language had affirmed that “ICE will comply with the law and accommodate Members seeking to visit/tour an ICE detention facility for the purpose of conducting oversight.”
In a May version of its guidance, DHS had also added a clause entitled “Interactions with Persons in ICE Detention Facilities or ICE Personnel,” which limited congressional members’ ability to undertake the kinds of activities traditionally associated with conducting oversight, such as “mov[ing] about, or leav[ing], the facility without being properly escorted by ICE staff,” and having “any physical or verbal contact with persons in ICE detention facilities and/or staff not involved in delivery of the tour absent express consent of the persons and approval in advance from ICE.” Also in the May update to the guidance, DHS added a caveat to a section describing “Conduct” expectations that “ICE retains the sole and unreviewable discretion to deny a request or otherwise cancel, reschedule, or terminate a tour or visit” under a variety of circumstances, including “any other identified operational concerns exist.” This caveat did not appear limited to non-congressional visits.
Aside from the official policy being unclear, DHS officials have offered a variety of differing legal rationales for the DHS position. In its guidance, DHS initially suggested limited congressional access was justified because Section 527 did not apply to certain kinds of ICE facilities. However, in response to media inquiries, DHS indicated it views notice and consent requirements as necessary to “ensure no intrusion on the president’s constitutional authority.” In other parts of DHS’ guidance, they have also suggested that “exigent circumstances” serve to limit congressional authority to access DHS facilities under Section 527.
This interbranch dispute is not the first such disagreement between Congress’ authority to conduct oversight in physical executive branch spaces. There are many examples of this tension with respect to congressional oversight of U.S. military bases, intelligence facilities, federally funded research labs, and more. The executive branch has legitimate interests in minimizing operational disruption and being able to execute on its policy and national security prerogatives – interests that must be balanced against Congress’s constitutional authority to conduct oversight and legislative needs for such fact-finding.
What is rare about this dispute is the fact that Congress passed a statute purporting to govern interbranch questions that are usually hashed out through the constitutionally mandated accommodation process. Typically, arrangements for Congress to inspect executive branch facilities are negotiated ahead of time, consistent with the longstanding practice of the executive and legislative branches negotiating suitable accommodations that balance Congress’ oversight needs against the Executive’s institutional interests. Here, however, the Republican-controlled House and the Democratic-controlled Senate in 2024 imposed a statutory right of access to DHS facilities as a condition of funding.
DHS has since reverted to a February 2025 version of its guidance on congressional visits, which (i) does not contain the language asserting Section 527 is inapplicable to ICE Field Offices; (ii) commits that “ICE will comply with the law and accommodate Members seeking to visit/tour an ICE detention facility for the purpose of conducting oversight,” without reference to an “exigent circumstances” exception; and (iii) does not contain explicit limitations on members of Congress’ movements in the facilities (though still requires advance approval of interactions with detainees, consistent with prior practice). Although the formal guidance has reverted, it remains to be seen whether DHS will continue to block Democratic lawmakers from accessing DHS facilities, whether DHS will voluntarily accommodate additional requests by members of Congress, such as requests for meetings with detainees, and whether Congress will view this as satisfactory of DHS’ statutory and constitutional obligations. Indeed, as recently as July 21, a Democratic Congresswoman claims she was “blocked” from conducting oversight when DHS denied her request to meet with detainees at the Eloy Detention Center in Arizona, despite providing her access to the facility itself – highlighting the complexities that will likely continue to play out in this interbranch dispute. Further, as recently as July 25, another Arizona representative was outright denied access to a DHS facility, with DHS reportedly citing a new policy requiring seven days’ advance notice irrespective of whether the visitor is a member of Congress.
Furthermore, the precise reach of Section 527, and any constitutional backstops it may face, is ripe for exploration by Congress and the executive branch as they continue to fight over access to DHS facilities. The legal merit of Section 527 could have significant ramifications for future interbranch disputes over congressional authority to access executive branch spaces.
Fifth Amendment Rights in Congressional Investigations
Another reemerging issue in oversight is to what extent Congress may, and should, draw inferences of wrongdoing based on assertions of the Fifth Amendment right against self-incrimination. In the House Oversight Committee’s Biden Autopen Probe, a number of former Biden aides have asserted their Fifth Amendment right against self-incrimination, including Anthony Bernal, former chief of staff to First Lady Jill Biden; Annie Tomasini, former assistant to the president; and Dr. O’Connor, the former White House physician. This is not necessarily a new phenomenon: the Fifth Amendment has been invoked in a variety of congressional investigations over the years, across multiple administrations. These include investigations such as the Communism hearings by the House Committee on Un-American Activities, hearings on the Iran-Contra Affair during the Reagan administration, and hearings concerning former President George W. Bush’s firings of U.S. Attorneys. More recently, John Eastman, Roger Stone, Jenna Ellis, Phil Waldron, and Michael Flynn all pleaded the Fifth in a congressional probe into the January 6 Capitol Attacks.
Republican members of the House Oversight Committee appear to be drawing inferences of wrongdoing based on the assertions from former Biden aides. For example, following O’Connor’s invocation of his Fifth Amendment right against self-incrimination, Chairman James Comer publicly stated “[i]t’s clear there was a conspiracy to cover up President Biden’s cognitive decline after Dr. Kevin O’Connor, Biden’s physician and family business associate, refused to answer any questions and chose to hide behind the Fifth Amendment.” Comer similarly asserted that Bernal was “pleading the Fifth Amendment to shield himself from criminal liability” after his invocation of his constitutional rights. Following Tomasini’s deposition, in which she invoked the Fifth Amendment, Comer announced “[t]here is now a pattern of key Biden confidants seeking to shield themselves from criminal liability for this potential conspiracy.” Committee member Byron Donalds also equated the invocation of this constitutional right to “hiding behind the Constitution so that they don’t have to tell the truth,” and categorized it as “corruption at the highest level” in response to media inquiries.
In the criminal context, inferences of guilt are generally prohibited based on a criminal defendant’s invocation of their Fifth Amendment rights. In civil cases, such inferences are generally permitted. However, in the congressional context – where there is a notorious dearth of black-letter law concerning common law privileges, constitutional privileges, and legally mandated processes to protect those privileges – courts have not yet had occasion to consider whether any such prohibition is mandated by the Constitution. Questions of whether Congress should draw inferences of misconduct, or point out such invocations in a prejudicial manner, still need to be answered as this issue remains at the forefront of oversight.
Even assuming Congress may legally draw adverse inferences from the invocation of the Fifth Amendment right against self-incrimination, the separate question of whether Congress should draw such inferences will be worth exploring as the Biden Autopen Inquiry unfolds. As one of the authors has previously articulated, there are compelling reasons that Congress should not be permitted to infer guilt from the invocation of Fifth Amendment rights. Congress’ oversight authority is derivative of its authority to legislate. While Congress must gather facts and expertise to inform legislative judgments that will have general applicability, and correspondingly requires broad authority to gather information, this authority is not intended to be prosecutorial.
Such a limitation on Congress’ authority is for good reason: the prosecutorial authority of the U.S. government is the province of the executive branch, and the Constitution affords individuals targeted by the executive branch’s prosecutorial authority certain substantive and procedural safeguards that are foundational to protecting against abusive treatment at the hands of the government. Notwithstanding this important constitutional boundary, congressional investigations have increasingly taken on prosecutorial slants in recent years, with many congressional committees citing fraud, criminality, and the prospect of DOJ referrals as ultimate end goals either in formal or informal statements. To the extent Congress would like its proceedings to be shown the respect accorded to those of Article III courts and federal criminal prosecutions, it should adopt commensurate notions of fair play for targets. Moreover, even setting aside Congress’ lack of formal prosecutorial authority, there remains an argument that underlying constitutional values should nonetheless apply to congressional proceedings for the simple reason that the Constitution should be read to protect private citizens from potential abuse by any governmental entity wielding the resources and authorities of the state.
The potential harms from allowing members of Congress to infer guilt based on invocations of the Fifth Amendment are particularly acute in the Biden Autopen Inquiry, given that – according to media reports – the witness’ invocations of the Fifth Amendment may not necessarily stem from a genuine belief that their testimony would offer evidence of criminality, but rather from concern over an overzealous DOJ, and a lack of clarity surrounding what activities Trump’s DOJ views as criminal. Indeed, just last month, Trump directed a parallel investigation into “whether certain individuals conspired to deceive the public about Biden’s mental state and unconstitutionally exercise the authorities and responsibilities of the President,” to be carried out by the White House Counsel’s Office and the DOJ. Given the ongoing parallel criminal inquiry, and the looseness with which the DOJ has articulated theories of criminality surrounding the Biden autopen issue, any inference of wrongdoing drawn from the invocation of the Fifth Amendment would appear particularly unwarranted.
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While the executive branch has long had an adversarial relationship with competing political representatives in Congress, the Trump administration’s recent activities represent a noteworthy escalation of this historical interbranch tension. In some instances, such as DHS’ aggressive rejection of Congress’ right to access its facilities, the lack of respect between coequal branches of government suggests a concerning deterioration in democratic norms. In other instances, such as Trump’s decision to waive executive privilege, a decrease in presidential comity, and minimizing of institutional interests may function to limit the White House’s ability to shield sensitive materials in the future and may inadvertently benefit a public seeking greater transparency into the workings of the executive branch. In any case, it is clear that Congress and the executive branch are unlikely to resolve many of these issues amicably. And although courts have historically been reluctant to step into disputes between the political branches, it will be interesting to see the degree to which – and the substantive results of – any judicial interventions in interbranch disputes over these complex issues.
