New Justice Department Memo Seeks to Extend Executive Privilege to Private Presidential Advisers

The Justice Department’s Office of Legal Counsel (OLC) has issued a new legal memorandum that argues senior advisers who are not government employees can invoke “testimonial immunity” on the same basis as the President himself. It further contends that executive privilege and testimonial immunity are sufficiently alike to justify the same protection for non-governmental consultants.

The Guardian

Executive privilege has been invoked by past presidents, but courts have frequently rejected those claims. In 2019, the OLC issued a memo that helped the Trump administration block former White House counsel Don McGahn from testifying, a claim later overturned by a federal district judge. Earlier precedents include President Bill Clinton’s unsuccessful attempts to avoid testimony before special prosecutor Kenneth Starr and President Richard Nixon’s failed effort to withhold the White House tapes, which the Supreme Court rejected in *United States v. Nixon*. The new memo also references the 1807 subpoena to Thomas Jefferson during the Aaron Burr trial, noting that Chief Justice John Marshall rejected Jefferson’s claim of privilege.

The Guardian

Legal commentators have warned that the memo’s reasoning departs from established case law and mischaracterizes historical precedent. Critics also note that the memo’s claim of “absolute immunity” for private advisers conflicts with the Supreme Court’s rejection of similar arguments in the Nixon case. Some observers suggest the timing reflects an effort to shield a president from forthcoming congressional investigations as control of the House or Senate may shift.

The Guardian

If courts were to accept the OLC’s expanded interpretation, it could make it substantially harder for Congress to compel testimony from private presidential advisers, thereby limiting legislative oversight of executive actions. The memo’s influence will ultimately depend on how federal judges apply existing precedents to these novel claims.

The Guardian