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DOJ expands privilege
The Department of Justice’s Office of Legal Counsel issued guidance saying President Donald Trump can exert executive privilege over communications with “private advisers,” including people outside the Executive Branch, as long as the communications relate to official presidential decisionmaking and are confidential.
“In an August 10 opinion, the DOJ’s Office of Legal Counsel”
In an August 10 opinion, the OLC wrote that “For the purposes of this memorandum, we use the term ‘private advisers’ to include anyone the President consults outside the Executive Branch,” and the memo was signed by Assistant Attorney General T. Elliot Gaiser.
The Independent reported that the opinion came the same day that Todd Blanche, the president’s former personal attorney, was sworn in as attorney general, and a DOJ official told The Independent that the issue “has not been litigated frequently.”
The Hill said the DOJ memo “isn’t binding but nonetheless signals the Trump administration is thinking about how to respond” to an expected wave of investigations if Democrats retake the House.
Shielding advisers from probes
CBS News described the OLC opinion as a 21-page document published Monday evening that told the White House the president can extend executive privilege to advisers who are not employed by the federal government but provide direct advice.
CBS News quoted the opinion’s framing that executive privilege can apply when communications “relate to official presidential decisionmaking,” are confidential, and involve conversations between the president and his direct team of advisers.
The Washington Times said the memo “declared that the president has the authority to extend executive privilege to private attorneys directly counseling him on sensitive matters,” while also noting that the guidance could expand the number of individuals shielded from congressional probes.
The Hill added that the OLC said the claim is not absolute and that the president could only assert executive privilege for discussions with outside advisers that are “limited to communications ‘in performance of [a President’s] responsibilities,’” and made “in the process of shaping policies and making decisions.’”
Political and legal stakes
The Independent reported that Punchbowl News’ Jake Sherman said the new opinion could have “big implications” if Democrats take back the House after the midterm elections and begin investigating the president.
“big implications" if Democrats take back the House”
CBS News said the opinion is not binding and comes months before a contentious midterm election that could result in Democrats winning one or both houses, with investigations potentially expanding the number of individuals protected from testimony or investigation.
Bloomberg Law News tied the privilege expansion to ongoing litigation, saying the guidance would potentially apply to DOJ’s fight with the American Bar Association over information sought from Boris Epshteyn, and it described the dispute as part of an ABA lawsuit challenging what it called Trump’s “law firm intimidation policy.”
The Hill reported that in April the OLC determined the White House should not have to comply with the Presidential Records Act, and in May a federal judge ordered the Trump administration to continue to comply with the law, finding “the original public meaning of the text of the Constitution” supports Congress’s power over presidential records.