The Trump administration is making a sweeping new claim about the scope of executive privilege, arguing in a Justice Department memo that the president's conversations with private advisers should be shielded from congressional and judicial scrutiny. The memo, issued by the Office of Legal Counsel (OLC), invokes historical precedent and legal doctrine to suggest that presidents have long relied on outside counsel and that such communications deserve the same protection as those with official White House staff.
But legal scholars and former government attorneys are pushing back, noting that executive privilege is not absolute and that the Constitution does not automatically extend it to individuals who are not part of the executive branch. The Supreme Court's decision in United States v. Nixon established that even presidential communications can be subject to disclosure when there is a demonstrated need, and no court has ever held that private citizens become functional equivalents of White House advisers simply because a president seeks their input.
The OLC memo also leans on the Federal Advisory Committee Act (FACA), which regulates how the president and federal agencies obtain advice from outside groups. But the OLC's own 1974 opinion on FACA did not conclude that executive privilege exempts such committees from disclosure requirements. Instead, it acknowledged that while the privilege might limit certain applications of the statute, it would not invalidate the law's oversight mechanisms.
Similarly, the D.C. Circuit's ruling in Association of American Physicians and Surgeons v. Clinton—often cited by the administration—was about statutory interpretation, not a constitutional privilege for private advisers. That case addressed concerns about the president's ability to seek outside advice, but it did not resolve whether such advice could be withheld from a subpoena.
The administration's argument essentially collapses the distinction between public officials and private individuals. Government employees are bound by ethics rules, financial disclosure requirements, and recordkeeping obligations, and they often undergo security clearances. Private advisers, by contrast, may be lobbyists, campaign donors, or industry representatives with financial stakes in the matters they discuss. Extending executive privilege to them would allow the president to benefit from their input without subjecting them to the same accountability measures.
The Supreme Court's reasoning in Department of the Interior v. Klamath Water Users Protective Association is instructive here. In that case, the Court refused to treat outside parties with their own interests as neutral consultants for purposes of FOIA exemptions. The same logic applies to executive privilege: not every outsider who provides information to the government is acting in a purely advisory capacity.
The OLC memo also tries to draw an analogy to legislative privilege, pointing to lawmakers' meetings with constituents and interest groups. But that comparison falls short. Legislative privilege does not grant categorical immunity to every conversation a member of Congress has with a private party, and the constitutional foundations of legislative and executive privilege are distinct. The president's need for candid advice from official advisers is well-established, but that need does not extend to anyone the president chooses to consult.
If this expansion of executive privilege were accepted, it would create a dangerous precedent. Presidents could shield conversations with corporate executives, political allies, or even foreign nationals from scrutiny, effectively granting the benefits of public office without its obligations. That would undermine transparency and accountability, which are essential to democratic governance.
The administration's move comes amid broader tensions over executive power and congressional oversight. As the midterm elections approach, these legal battles are likely to intensify. The OLC memo is not binding on courts, but it signals the administration's willingness to test the limits of executive authority. Ultimately, it will be up to the judiciary to determine whether executive privilege can be stretched this far, and the weight of precedent suggests it should not be.
