USA11 August, 20263 min read
DOJ Office Of Legal Counsel Says Executive Privilege Protects Trump Communications With Private Advisers
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DOJ memo says president can extend executive privilege to communications with private advisers outside government. It could shield those advisers from congressional inquiries and legal investigations.
DOJ memo expands privilege
The U.S. Department of Justice Office of Legal Counsel issued a 21-page memorandum opinion on Monday arguing that executive privilege can apply to President Donald Trump’s communications with private advisers who do not work for the White House.
The memo, signed by Assistant Attorney General T. Elliot Gaiser, says the president can extend executive privilege if the communications “relate to official presidential decisionmaking” and are confidential.
The Washington Examiner reported the opinion was posted without a press release or public announcement, and it was issued the same day Attorney General Todd Blanche was sworn in at the White House.
The Hill described the memo as not binding but as a signal that the Trump administration is preparing for “a bevy of investigations” if Democrats retake the House after the midterm elections.
CNN added that the question of whether privilege protects a president’s communications with advisers outside the executive branch “has never been tested directly in court,” citing Jonathan Shaub of the University of Kentucky School of Law.
Epshteyn and the ABA
The memo’s expanded privilege framework could be used in the American Bar Association case involving Boris Epshteyn, whom the DOJ described as Trump’s personal lawyer and a longtime informal adviser. The Washington Examiner said the administration has argued that Epshteyn-related communications are protected by the “presidential communications privilege” and asked a judge to block the discovery request in a July 2 filing. CNN reported that the DOJ has teed up executive privilege arguments to block subpoenas for testimony and documents issued to Epshteyn, who “does not work in the administration but was instrumental in the deals the White House reached with law firms.”
The Hill quoted Gaiser’s view that “At bottom, the purpose of executive privilege is to protect the government’s decisionmaking processes,” and it described the OLC’s position as broadening the number of people the president could try to shield from congressional investigations. CBS News said the new step could protect outside legal counsel and other advisers from divulging information in future congressional investigations or legal proceedings, including communications tied to the ABA’s effort to subpoena Epshteyn.
Congressional subpoena battles ahead
Multiple outlets framed the memo as setting the stage for future battles with Congress if Democrats regain subpoena power in the House after the November elections. The Washington Examiner said the guidance could have more immediate consequences in the Trump administration’s fight with the American Bar Association over its effort to subpoena Boris Epshteyn, and it described how the White House would need to assert executive privilege over particular records or questions. CBS News said the opinion comes months before a contentious midterm election that could result in Democrats winning one or both houses, and it warned that “a barrage of investigations could follow.”
CNN reported that when Democrats took over the House in 2018, their investigations prompted novel legal disputes over what information lawmakers could obtain about both Trump’s personal conduct and the conduct of the government. The Hill added that the OLC argued the claim is not absolute and that the president could only assert executive privilege for discussions with outside advisers “limited to communications ‘in performance of [a President’s] responsibilities,’ ‘of his office,’ and made ‘in the process of shaping policies and making decisions.’”