The U.S. Department of Justice’s Office of Legal Counsel (OLC) issued a 21-page memorandum opinion on August 10 outlining that executive privilege may apply to communications between President Donald Trump and private advisers outside the federal government, provided the discussions relate to official presidential decision-making, involve or reflect communications with the president or his direct advisers, and remain confidential.
The opinion, signed by Assistant Attorney General for the OLC T. Elliot Gaiser, was published without a press release or public announcement. It was released the same day Attorney General Todd Blanche was sworn in at the White House and days after Trump announced that White House staff secretary Will Scharf would replace David Warrington as White House counsel.
Key provisions of the memo
The OLC memo states that executive privilege can cover communications with private advisers, defined as individuals outside the executive branch, including attorneys, business executives, state officials, or members of the public. The opinion argues that such protection is necessary to ensure the president can receive candid advice without fear of public disclosure.
The document cites two legal precedents to support its interpretation:
- A 2007 OLC opinion authored by then-Solicitor General Paul Clement regarding the dismissal of U.S. attorneys.
- The D.C. Circuit’s 1997 decision in In re Sealed Case, which held that the “presidential communications privilege” can extend to information advisers solicit from outside sources while preparing advice for the president.
The memo acknowledges that the privilege is not absolute and must balance the need for confidentiality with the public’s right to oversight. It warns against extending the privilege so broadly that government material becomes “sequestered from public view.”
Purpose and rationale
The OLC opinion emphasizes that executive privilege serves to protect the government’s decision-making processes, particularly for the president, who must make “the most sensitive and far-reaching decisions.” It argues that without confidentiality, advisers may hesitate to provide “blunt or harsh opinions” on controversial policies, hindering the president’s ability to act quickly.
The memo states: “The unrestrained ability to gather information is essential to the President’s executive function. Whether in crafting a policy or making a final decision, the president ‘must have the freedom to seek out whom he wishes for advice,’ regardless of whether that individual is a government official or a private citizen.”
Potential implications
The opinion is not legally binding but provides a framework for the Trump administration to respond to potential congressional investigations if Democrats regain control of the House in the November elections. Such investigations could target Trump’s dealings with outside lawyers, business executives, and political advisers.
Traditionally, executive privilege has applied to communications within the executive branch. The new guidance broadens the scope to include private advisers, signaling a potential shift in how the administration may resist subpoenas or requests for testimony.
Legal and political context
The memo’s release coincides with heightened political tensions ahead of the midterm elections. If Democrats win the House, they could pursue investigations into Trump’s administration, including his interactions with outside advisers. The OLC opinion offers a legal basis for the White House to withhold such communications from congressional scrutiny.
The opinion also reflects ongoing debates over the boundaries of executive privilege, a doctrine that has been tested in past administrations, including during the presidencies of George W. Bush and Barack Obama. Legal scholars and lawmakers may scrutinize the memo’s interpretation, particularly its expansion of privilege to non-governmental advisers.