Executive privilege, the legal doctrine that shields a president's internal communications from congressional and court scrutiny, may now extend to private citizens who advise the White House but hold no government post. The Justice Department's Office of Legal Counsel issued that conclusion Monday, and the memo was first reported by Punchbowl News. Democrats planning to subpoena companies, colleges, and individuals if they retake Congress in November could find that avenue narrowed.
What the opinion actually says
The Office of Legal Counsel is the Justice Department unit that issues binding legal guidance for the executive branch. Its new memo sets three conditions for the privilege to apply to private-party communications: the contact must relate to official presidential decisionmaking, involve or reflect communication with the president or his direct advisers, and remain confidential.
The stated rationale is that outside advisers may be less willing to give candid advice if they fear public disclosure. A Justice Department official told Axios the opinion "reaffirms the longstanding position of the office going back at least as far as Paul Clement in 2007 and arguably as far back as 1972."
Why Democrats are paying attention
Congressional subpoenas to private parties have been a central part of Democratic strategy heading into the midterms. The idea was to sidestep expected White House stonewalling by going directly to businesses, universities, and individuals connected to the administration.
Jonathan Shaub, a University of Kentucky law professor and former Office of Legal Counsel attorney, called the opinion "a pretty significant weapon" for the administration to deflect congressional probes of private parties. The opinion is already being tested in a live dispute: Boris Epshteyn, Trump's senior personal counsel, is contesting a subpoena from the American Bar Association over deals the administration struck with law firms.
Where the legal theory may fall short
Shaub doubts courts will accept the argument. He told Axios that while the Office of Legal Counsel has long held expansive views of executive privilege, this opinion goes further than anything the office has formally ruled before. "The understanding was the general public and the courts would never accept this," he said, adding that the current office appears less cautious about staking out sweeping positions.
There is also a limit written into the opinion itself. The privilege covers only presidential duties. Shaub said a congressional probe into something like Trump's cryptocurrency activities would be harder to defend as privileged on those grounds.
The opinion arrives as two senior administration lawyers change roles. Todd Blanche was formally sworn in as attorney general. Will Scharf, currently White House staff secretary, is set to take over as White House counsel and would sit at the center of any congressional privilege disputes if Democrats gain enough seats in November.