The Justice Department's Office of Legal Counsel issued a memo late Monday concluding that President Donald Trump can invoke executive privilege to block private advisers, including outside lawyers who are not government employees, from testifying about their communications with him to courts or Congress, according to Bloomberg Law.
The opinion, posted just hours after Todd Blanche was sworn in as attorney general, marks a significant expansion of a doctrine that has traditionally been applied to communications involving officials formally employed by the White House. Under the new guidance, executive privilege can extend to presidential communications with private advisers so long as three conditions are met: the discussions relate to official presidential decisionmaking, they involve the president or his direct advisers, and they remain confidential, Bloomberg Law reported.
The New Republic, which first flagged the timing of the memo relative to Blanche's confirmation, reported that the guidance also appears to broaden executive privilege to cover communications between the president's direct advisers and private citizens. The outlet characterized the move as evidence that the Trump administration is preparing to resist congressional oversight if Democrats retake the House in the midterm elections.
The memo has immediate relevance to an ongoing legal fight between the Justice Department and the American Bar Association. The ABA is suing over Trump's executive orders that targeted major law firms last year, orders the organization has described as a “law firm intimidation policy,” according to Bloomberg Law. As part of that litigation, the ABA subpoenaed the White House and Boris Epshteyn, one of Trump's personal lawyers, seeking correspondence tied to the orders and to separate deals the White House struck with other firms to avoid similar treatment.
Epshteyn is not a government official, but he has served as a liaison between the White House and private-sector law firms, Bloomberg Law reported, citing two people familiar with the matter. He communicated with firms that collectively pledged nearly 1 billion dollars in free legal services on causes aligned with Trump, and he coordinated strategy with lawyers representing the president in litigation with the Internal Revenue Service, according to those sources. The White House has argued that its communications with Epshteyn are protected by presidential privilege and responded to the ABA's subpoenas by issuing its own information demands directed at the law firms. The two sides are now sparring over how broad those requests should be.
The underlying dispute traces back to executive orders that stripped law firms of access to federal buildings and classified materials and threatened government contracts held by the firms' clients, Bloomberg Law reported. The administration also opened investigations into some firms over their diversity initiatives, alleging employment discrimination. In response, Democrats on Capitol Hill, led by Representative Jamie Raskin of Maryland, have pressed nine law firms that reached deals with the White House for details about those agreements and how the firms are satisfying their pledged legal work. Raskin is positioned to lead the House Judiciary Committee if Democrats win a majority in the midterms, which would give the new privilege guidance outsized importance for any future subpoenas his committee might issue.
Senate Minority Leader Chuck Schumer responded to the memo Tuesday morning, saying it showed that Trump was “petrified of the questions a Democratic Congress will demand answers to,” according to The New Republic.
The timing of the opinion drew particular criticism because it followed closely on the heels of Blanche's confirmation as attorney general. The New Republic noted that several Republican senators, including Bill Cassidy, John Cornyn, and Thom Tillis, had voted to confirm Blanche in part because of his stated commitments to limit the scope of a separate presidential immunity question during his confirmation process. Those senators' support, the outlet argued, now looks harder to square with a memo issued by Blanche's own department mere hours after he took office, extending legal protections for the president rather than narrowing them.
Executive privilege has historically been invoked to protect confidential communications between a president and his closest official advisers, shielding internal deliberations from compelled disclosure in litigation or congressional inquiries. Applying the doctrine to private, non-government lawyers and other outside advisers is a departure that legal observers say could reshape how future oversight investigations unfold, particularly if control of Congress changes hands. If the privilege can reliably be extended to figures like Epshteyn, who operate outside formal government roles but communicate directly with the president on sensitive matters, it could give the executive branch a broader shield against subpoenas seeking to trace how policy decisions, including the law firm sanctions at the center of the ABA case, were actually made.
For now, the immediate battleground remains the Epshteyn subpoena fight within the ABA's lawsuit, where the parties are still litigating the scope of the information requests exchanged between the White House and the law firms. How a court weighs the new OLC guidance in that dispute could offer the first real test of how far the reshaped privilege doctrine extends, and whether it will hold up against a subpoena aimed squarely at communications the ABA argues go to the heart of an alleged intimidation campaign against the legal profession.
