The Justice Department's Office of Legal Counsel (OLC) issued a memo Monday arguing that the president can invoke executive privilege not only for communications with White House staff but also for discussions with "private advisors" outside the government. This interpretation would expand the circle of individuals President Trump could potentially protect from congressional oversight.
The opinion, first reported by Punchbowl, is not legally binding, but it signals that the administration is preparing for a wave of investigations should Democrats regain control of the House. The memo reflects a broader strategy to limit congressional access to the president's inner circle.
Traditionally, executive privilege has been understood to cover communications within the executive branch. However, OLC argues that advice from outsiders can be just as critical to presidential decision-making and therefore deserves the same confidentiality protections.
"At bottom, the purpose of executive privilege is to protect the government's decisionmaking processes," wrote T. Elliot Gaiser, assistant attorney general for OLC. He added that the need for "candid, objective, and even blunt or harsh opinions" is especially acute for the president, who faces "the most sensitive and far-reaching decisions entrusted to any official under our constitutional system."
Without such confidentiality, Gaiser argued, the president's ability to "decide and act quickly" on matters of national importance would be "seriously hindered."
The memo does not grant an absolute privilege. OLC said it would apply only to communications "in performance of [a President's] responsibilities," "of his office," and made "in the process of shaping policies and making decisions." Still, the expansion could be used to resist subpoenas and other congressional demands, particularly for a president who has maintained close ties to business leaders and continued to manage his private enterprises while in office.
This is not the first time the Trump administration has sought to narrow transparency requirements. In April, OLC concluded that the White House should not be bound by the Presidential Records Act, which mandates broad preservation of records, including staff communications. A federal judge in May rejected that stance, ruling that Congress has the constitutional authority to regulate presidential records under the Property Clause.
The new memo may face similar legal challenges, but it underscores the administration's determination to guard the president's decision-making process from external scrutiny. As congressional Democrats prepare to launch investigations, the scope of executive privilege is likely to become a central battleground.
