DOJ Memo Seeks to Extend Executive Privilege to Private Advisers

Two recent commentary pieces note that the Justice Department’s Office of Legal Counsel (OLC) has issued a draft memorandum proposing that President Donald Trump may invoke executive privilege not only for communications with White House staff but also for discussions with “private advisors” outside the government. The memo, described as an opinion rather than binding law, is positioned as a pre-emptive response to anticipated congressional investigations should Democrats regain control of the House.

The HillAlternet

Historically, executive privilege has been limited to communications involving official executive-branch personnel. The OLC’s reasoning follows earlier Trump-era opinions that questioned the applicability of the Presidential Records Act to White House communications.

The HillAlternet

Assistant Attorney General T. The memo emphasizes that the privilege is not absolute; it would apply only when the communications are directly tied to official presidential decision-making and are kept confidential.

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Legal analysts and critics argue that expanding the privilege to informal “kitchen cabinet” members creates a “dangerous loophole” that could conceal the influence of private political fixers from oversight. Critics contend that shielding private advisers undermines public accountability and could permanently reshape the limits of presidential power.

Alternet

• “At bottom, the purpose of executive privilege is to protect the government’s decisionmaking processes,” — T. Elliot Gaiser, assistant attorney general for OLC

The Hill

• “As court fight brews over demands for testimony and records from outside Trump advisers like Boris Epshteyn, DOJ's Office of Legal Counsel issues opinion arguing executive privilege extends to Kitchen Cabinet,” — Politico's Josh Gerstein

Alternet

• “As a general matter, executive privilege can apply to presidential communications with private advisers so long as the communications (1) relate to official presidential decision making, (2) involve or reflect communications with the President or his direct advisers, and (3) are confidential,” — Assistant Attorney General T, argued assistant attorney

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• “Presidential communications with private advisers can fall within the scope of executive privilege so long as they relate to official presidential decision making, involve or reflect communications with the President or his direct advisers, and are confidential. Please let us know if we may provide any further assistance.” — Monday. He

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