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Previously, we’ve written about how the focus of congressional investigations shifts each time control of the House or Senate changes parties. With polls showing Democrats are in position to pick up seats in this year’s mid-term elections, Democratic Party leaders are already drafting the framework for potential investigations in the next term. Many are sending letters today, even though they do not currently hold a gavel, creating an inflection point for potential targets to decide how best to respond.

According to media reports, major corporate donors, government contracting companies, and critical minerals companies could find themselves in the investigative hot seat for decisions made during the first two years of the current Trump Administration.

Now is the time for clients to invest in a preparedness strategy and to get ahead of the letters from congressional investigators.

Congress Gearing up for 2027 and Beyond

Even though Democrats currently lack subpoena power, as the minority party in both houses of Congress, they already have undertaken a robust slate of inquiries in recent months.

Many of their efforts scrutinize instances where companies allegedly have benefited from federal policies, interacted extensively with the administration, or been involved in transactions requiring government approval. Democratic lawmakers have already begun investigating major energy companies over alleged “windfall” profits tied to fuel price increases.

Such activities may indicate their investigative priorities should the party reclaim control of either the House or Senate.

Rep. Robert Garcia (D-Calif.), the ranking member of the House Oversight Committee, told the Wall Street Journal that committee members are meeting this summer to plan its agenda, and alleged misuse of influence by the White House will be a topic of discussion.

“I think our top issues are going to be Trump corruption and Trump family corruption. Everything to do from the crypto scheme to pay-to-play, selling pardons, obviously the Trump family cutting real estate deals, the defense contracts,” Garcia said.

One sector already on the table for investigation: critical minerals. Congressional Democrats are preparing an in-depth investigation into the Trump Administration’s critical minerals dealings. The Administration has greatly ramped up federal spending on critical minerals. In large part, this increase in federal spending is because China is the market leader in the production and processing of lithium, cobalt, rare earth elements, graphite, refined copper, and other critical minerals used in the technology, energy, and defense sectors.

But critics have noted that some companies in these industries have ties to the Trump family, as well as to the family of Commerce Secretary Howard Lutnick, who helped lead many of these deals.

While the Trump Administration is the main target of Congressional Democrats’ future investigations, private companies that have worked with the Administration, or donated to its causes, may be called to testify before congressional committees or become the target of a document request.

“I have to think they [the White House] will once again try to stonewall, but here we will have an opportunity to go to the private sector,” said Sen. Adam Schiff (D-Calif.), a member of the Senate Judiciary Committee, told the Wall Street Journal.

An Expansion of Executive Privilege?

While Republicans are publicly predicting they will retain both branches of Congress in the midterms, behind the scenes, they are taking steps to prepare for increased scrutiny should they lose control of one or both chambers.

For example, the White House Office of Legal Counsel (OLC) issued a new Opinion on Executive Privilege on Aug. 10. This memorandum concludes that Presidential communications with private advisers may be protected by executive privilege if they satisfy three requirements:

  • They relate to official presidential decision-making;
  • They involve or reflect communications with the President or his direct advisors; and
  • They were intended to remain confidential.

Congress traditionally has looked to the courts to define the scope of a privilege. In this case, the precedent established by the Supreme Court diverges from the views articulated by OLC. The Court has previously articulated that the presidential communications privilege is confined to core presidential functions, such as appointments and removals, pardons, commander-in-chief functions, and treaty-related matters. Moreover, the presidential communications privilege has traditionally been limited to the president and close White House advisors. It is tied to communications actually solicited or received within that advisory chain and is not readily extended to outside private actors simply because they communicated with the President.

Accordingly, we foresee that this action alone sets up a potential dilemma for those deemed to be “private advisors” of the President, which carries with it an obligation to preserve the confidentiality of those conversations. This is a designation that Congress may refuse to recognize.

What Companies Should Do Now to Prepare

Companies that have engaged with the Administration, received federal funding or approvals, secured government contracts, or participated in industries likely to attract congressional scrutiny (such as oil and gas and critical minerals) should begin preparing now for the possibility of oversight inquiries in 2027 and beyond. 

An effective preparedness strategy includes: 

  • Identifying potentially sensitive transactions and communications;
  • Reviewing document retention and preservation practices;
  • Assessing relationships that could draw congressional interest; and 
  • Ensuring executives understand the unique risks and demands of congressional investigations. Unlike traditional litigation or regulatory inquiries, congressional investigations often unfold in the public spotlight and can create significant legal, operational, and reputational challenges.

For potentially impacted companies, the time to prepare is now—not when called to testify before Congress.

If you have any questions about the issues raised in this alert, please contact the authors or the Womble Bond Dickinson attorneys with whom you normally work.