The Justice Department’s Office of Legal Counsel issued a memo on August 10, 2026, stating that executive privilege can shield President Trump’s communications with private advisers who do not work for the federal government, marking a significant expansion of a doctrine historically limited to government officials.
The 21-page opinion, signed by Assistant Attorney General T. Elliot Gaiser, lays out three criteria for when the privilege applies: communications must relate to official presidential decisionmaking, involve or reflect communications with the President or his direct advisers, and be confidential. The memo states that “the need for presidential confidentiality applies to communications with private advisers just as it does with government officials.”
The timing of the memo—released months before a contentious midterm election that could result in Democrats winning one or both houses of Congress—signals the administration’s preparation for a potential wave of congressional investigations. If Democrats gain control, they could subpoena Trump’s outside advisers for testimony and documents related to his decision-making.
The opinion could immediately shield outside Trump adviser and lawyer Boris Epshteyn, who was recently subpoenaed by the American Bar Association in a lawsuit related to the White House’s alleged “intimidation policy” against major law firms. The DOJ has already moved to quash that subpoena, arguing Epshteyn “provided the President with privileged and confidential advice.”
Executive privilege itself has deep historical roots. The Supreme Court recognized “the privilege of confidentiality of Presidential communications” in the landmark 1974 case United States v. Nixon, which established that the doctrine “derive[s] from the supremacy of each branch within its own assigned area of constitutional duties.” However, that case and subsequent precedent generally treated the privilege as applying to communications within the government, not with outside private citizens.
The memo cites historical examples of presidents consulting private advisers—Andrew Jackson’s informal “Kitchen Cabinet” of government officials and personal associates, Franklin Roosevelt’s “Brain Trust” of academics, and President Grover Cleveland’s consultation with J.P. Morgan on Treasury matters. The opinion argues that this historical practice supports extending privilege to private advisers today.
Legal experts have challenged the expansion. Harvard law professor Noah Feldman, writing in Bloomberg Opinion on August 14, 2026, argued that the administration’s assertion is “politically unprecedented, legally wrong and morally dubious.” Feldman noted that “from a legal standpoint, the point of executive privilege is to protect communications that occur within the government, between the president and other public officials.”
The memo is not the first time the Trump administration’s Office of Legal Counsel has broken with historical precedent. In April, Gaiser authored an opinion claiming the Presidential Records Act—enacted after Watergate to require presidents to preserve documents and turn them over to the National Archives—is unconstitutional. A federal judge in Washington, D.C., later ordered White House staff to comply with the law after a government oversight group and the American Historical Association sued to invalidate that opinion.
Sources
- CBS News — Details on the DOJ memo, its three criteria, and Boris Epshteyn subpoena
- Justice Department Office of Legal Counsel — Full text of the August 10, 2026 memo on executive privilege and private advisers
- Bloomberg Opinion — Noah Feldman’s analysis of the expansion as legally and morally indefensible
- The Hill — Coverage of the memo’s timing before the midterm elections
