The Trump administration’s Justice Department expanded executive privilege on August 11 to shield the president’s communications with private advisers outside government, formalizing a legal position that could block congressional investigations if Democrats retake the House.
The DOJ’s Office of Legal Counsel issued a memo stating that executive privilege can protect presidential conversations with non-government advisers so long as the communications relate to official presidential decisionmaking, involve or reflect communications with the president or his close advisers, and remain confidential.
“Restricting executive privilege to purely intragovernmental communications would foreclose the President from relying on an array of important sources that he may find necessary to the effective discharge of his responsibilities of office,” the OLC opinion said. “Such an outcome not only would impair the President’s Article II functions, but ultimately would harm the public itself.”
Before Trump, fights over protections for presidential communications with private advisers were uncommon because presidents rarely depended on individuals outside the executive branch for private conversations that shaped public policy. Trump, however, regularly seeks input from a constellation of allies outside the White House, including from Congress, the business world, and childhood friends.
Jonathan Shaub, a University of Kentucky School of Law professor who served in the Obama administration’s OLC, told CNN that while the position may align with past OLC stances, “it’s never been stated publicly, because the office understands how extreme this is outside the world of OLC.” He noted that the question of whether privilege protects a president’s communications with outside advisers has never been tested directly in court.
The memo is being deployed immediately in an ongoing American Bar Association lawsuit against the Trump administration. The DOJ has invoked executive privilege arguments to block subpoenas for Boris Epshteyn, Trump’s personal attorney who negotiated deals with law firms seeking to avoid executive orders targeting their operations. The ABA subpoenaed Epshteyn’s communications, but the DOJ argued in court filings that revealing his identity or the content of consultations with the president “could chill participation in future deliberations, undermining the President’s access to the best advice.”
The OLC memo points to historical precedent, citing a 2007 opinion from the Bush administration that said executive privilege applied to communications between Congress and the White House regarding President George W. Bush’s firing of several US attorneys. The new memo also references examples from the Andrew Jackson and Franklin Delano Roosevelt administrations of presidents drawing on outside expertise.
The timing of the memo comes as Will Scharf takes over as White House counsel, effective September 1. If Democrats regain subpoena power after the November elections, Scharf would likely be at the center of future executive privilege disputes.
Democratic Senator Adam Schiff called the opinion a “partisan measure to insulate the president and his corrupt activities from Congressional subpoenas.” Shaub told Axios that while the memo offers a legal argument for individuals fighting subpoenas, he doubts courts will accept the OLC’s theory, noting that the administration has been unusually willing to make broad legal claims without concern for public acceptance.
The memo is the latest in a series of steps the Trump administration has taken to shield records from public scrutiny. In April, the OLC determined the White House should not have to comply with the Presidential Records Act, which mandates broad preservation of White House records. A federal judge later rejected that position, ordering the administration to continue complying with the law.
The OLC opinion does contain limits: the administration argues privilege applies only when communications relate to official presidential duties. Shaub suggested that probes into Trump’s business interests, such as his cryptocurrency holdings, may be harder to defend as privileged since they fall outside official presidential functions.
Sources
- CNN — DOJ memo allowing executive privilege for private advisers; expert analysis from Jonathan Shaub; timing and implications for Democratic investigations
- The Hill — DOJ Office of Legal Counsel memo details and conditions; historical precedent; expert commentary on the memo’s extremism
- Axios — Executive privilege expansion for Trump’s private advisers; Schiff’s criticism; Shaub’s doubts about court acceptance; context on Trump’s private-sector ties
- Law.com National Law Journal — Boris Epshteyn case details; ABA subpoena dispute; law firms’ responses to DOJ subpoenas
- Justice Department Office of Legal Counsel — Official memo on executive privilege applicability to private advisers
