Justice Department Opinion Expands Executive Privilege to Private Advisers

The Justice Department’s Office of Legal Counsel (OLC) has released a new opinion, indicating a potential expansion of executive privilege to extend protections to President Trump’s private advisers. These advisers, while not federal employees, play significant roles in providing direct advice to the president.

The 21-page document elaborates on how executive privilege could encompass communications from private advisers if they pertain to presidential decision-making, remain confidential, and involve discussions between the president and his core team of advisers. This opinion surfaced ahead of a crucial midterm election that might lead to Democratic control in Congress, triggering broader investigations. Such an outcome could increase the number of individuals shielded from testifying or facing legal scrutiny.

The opinion, authored by Assistant Attorney General T. Elliot Gaiser, emphasizes that “the purpose of executive privilege is to protect the government’s decision-making processes.” It asserts that the need for confidentiality in communications remains consistent, whether with official staff or private advisers. The document argues that a private adviser might offer distinctive insights, crucial for a well-informed presidential decision.

This opinion is not binding and deviates from precedent. Earlier, Gaiser issued another controversial opinion, challenging the constitutionality of a post-Watergate law that mandates presidential document preservation for the National Archives. Despite a federal judge mandating compliance, this opinion asserted otherwise.

The current opinion, though, can also potentially protect lawyers like Boris Epshteyn, recently subpoenaed due to alleged executive intimidation policies affecting major law firms. The Justice Department aims to nullify this subpoena, asserting that Epshteyn’s advice should remain privileged and confidential.