Assistant Attorney General T. Elliott Gaiser may face a packed schedule in 2027. Before the new Congress convenes in January, President Donald Trump could ask Gaiser and the Justice Department’s Office of Legal Counsel to address several major constitutional questions.
The prospect of a clash became more visible Friday, Nov. 6. At 3:29 p.m., Rep. Robert Garcia, a California Democrat expected to lead the House Oversight Committee, posted a warning aimed at incoming White House chief of staff Stephen Miller, saying Miller should get a lawyer. Later that afternoon, Attorney General Todd Blanche replied that Miller already had one: the attorney general and the Justice Department.
The coming two years could bring a significant dispute between Congress’s powers under Article I of the Constitution and the president’s authority under Article II. The Supreme Court may ultimately have to settle some of those disputes. But the legal and political arguments are likely to begin well before then, with the Office of Legal Counsel playing an important role.
The office is the Justice Department’s main legal adviser to the president and executive branch. The Senate confirmed Gaiser as assistant attorney general on July 30, 2025. He leads a staff of roughly two dozen lawyers, including career officials and political appointees, who are widely regarded as experienced legal scholars.
OLC responds to questions from the president and attorney general, and may also advise Cabinet officials and military leaders when circumstances permit. Unlike the Supreme Court, it can provide legal guidance before a dispute becomes an actual court case or is ready for judicial review.
For example, in an opinion issued Aug. 10, OLC concluded that executive privilege may cover a president’s communications with private advisers when they concern official decision-making, involve the president or close advisers, and remain confidential.
More disputes over executive privilege are likely. New Democratic majorities in Congress may seek testimony and records involving matters Trump has placed under that privilege. But other constitutional questions could be sent to OLC before those battles intensify, including proposals to expand the Supreme Court, make the District of Columbia a state, and adopt the National Popular Vote Interstate Compact.
Presidents from both parties have invoked executive privilege in disputes with Congress. Courts have sometimes ruled for the president and sometimes for lawmakers.
In 2024, President Joe Biden asked OLC whether he could withhold audio recordings of interviews with special counsel Robert Hur, who had investigated Biden’s handling of classified documents. OLC said Biden could assert executive privilege. The opinion and Biden’s refusal to release the recordings were challenged in court; the Trump administration later released them.
Other administrations have faced similar fights. President Bill Clinton invoked a protective-function privilege for the Secret Service and attorney-client privilege for White House communications. The U.S. Court of Appeals for the D.C. Circuit rejected those claims in whole or in significant part. President Barack Obama asserted executive privilege over records connected to the “Fast and Furious” investigation, but the ensuing lawsuit ended in a settlement before a court ruled.
Trump is likely to take a similarly forceful approach as Garcia and Rep. Jamie Raskin, a Maryland Democrat expected to chair the House Judiciary Committee, pursue investigations into executive branch conduct. Both committees have subpoena authority.
Under federal law, the president may request a legal opinion from the attorney general, who can turn to OLC for analysis. Before the office is inundated with executive privilege questions in 2027, Trump could ask it to examine several other issues before the new Congress is sworn in on Jan. 3.
One prominent question is whether Congress can increase the Supreme Court’s membership beyond its current nine justices. The argument against expanding the court, sometimes called court packing, points to the Fourteenth Amendment’s guarantee of due process and the history of the Judiciary Act of 1869.
Congress set the court at nine justices in 1869 after changing its size several times in the preceding years. OLC could assess whether increasing the number of justices would conflict with due process or amount to an unconstitutional effort to control judicial review. The Constitution does not expressly describe that power, though the Supreme Court recognized it in the 1803 decision Marbury v. Madison.
Democrats have also proposed statehood for the District of Columbia and Puerto Rico. The Twenty-Third Amendment addresses the District, and OLC could consider whether D.C. statehood would require a further constitutional amendment.
Another unresolved question concerns the National Popular Vote Interstate Compact. Under the agreement, participating states promise to award their electoral votes to the presidential candidate who wins the national popular vote. Legal scholar Jonathan Turley has argued that Democratic control in several states could make it easier for them to join the compact. Its constitutionality has not yet been tested in court.
OLC has not issued opinions on either D.C. statehood or the compact. Gaiser and his staff could examine all three issues, including who might have legal standing to challenge them and when a lawsuit would be ready for a court to hear. Such opinions would not bind federal courts, but they could shape the legal debate that precedes any eventual rulings.
