Full Breakdown
DOJ OLC Memo Broadens Executive Privilege to Private Advisers
8/26/2026, 10:18:19 PM
Memo Details
On August 10, 2026, the Justice Department’s Office of Legal Counsel (OLC) issued a 21-page opinion that expands the doctrine of executive privilege to cover President Donald Trump’s communications with private advisers who are not federal employees. The memo, signed by Assistant Attorney General T. Elliott Gaiser, sets out three criteria for the privilege to apply: (1) the communication must relate to official presidential decision-making; (2) it must involve or reflect communications with the President or his direct advisers; and it must be confidential.
Historical Context
Executive privilege has traditionally been limited to intra-governmental communications. Nixon (1974), emphasizing that the privilege protects interactions within** the government. Past presidents have consulted outside experts—Andrew Jackson’s “Kitchen Cabinet,” Franklin D. Roosevelt’s “Brain Trust,” and Grover Cleveland’s dealings with J.P. Morgan—but those instances have not been treated as a legal basis for extending privilege beyond government officials.
Criteria Outlined in the Memo
1. Official Decision-Making – The communication must pertain to a presidential action or policy.
2. Involvement of the President or Direct Advisers – The exchange must include the President or a senior aide.
3. Confidentiality – The content must be treated as private and not disclosed publicly.
Official Position of the DOJ
The department has already invoked the memo to quash a subpoena issued to Boris Epshteyn, a private attorney who advised the President, arguing that his communications with the President are privileged.
Verbatim Quotes
- “Indeed, history is replete with examples of Presidents using private advisers as trusted confidants for these reasons.” — The OLC
What’s Next
The memo was released months before the 2026 midterm elections, a period in which Democrats could gain control of one or both chambers of Congress. If that occurs, congressional committees may issue subpoenas to private advisers for testimony and documents related to presidential decision-making. The DOJ has indicated it will continue to rely on the August 10 memo to resist such subpoenas, setting the stage for potential litigation over the scope of executive privilege.
