Justice Department Legal Opinion Says Executive Privilege Can Cover Trump's Private, Outside Advisers
The Facts
- The Justice Department's Office of Legal Counsel published a 21-page memorandum opinion on Monday evening stating that executive privilege can extend to the president's communications with private advisers who are not federal employees.
- The opinion sets three conditions for the privilege to apply: the communications must relate to official presidential decisionmaking, involve or reflect communications with the president or his direct advisers, and be confidential.
- The memorandum opinion was signed by Assistant Attorney General T. Elliot Gaiser of the Office of Legal Counsel.
- Presidents have traditionally asserted executive privilege only over communications with executive branch staff; the opinion would broaden the number of individuals the administration could seek to shield from congressional investigations.
- The opinion also extends the shield to the president's direct advisers' communications with private citizens.
- Office of Legal Counsel opinions are not legally binding, but reporting describes the memo as signaling how the administration may respond to investigations if Democrats retake the House.
- The memo lands as Democrats seek to win back the House in November's midterm elections and with it subpoena power, and amid ongoing litigation over demands for testimony and records from outside Trump advisers.
- The document was posted without a press release or public announcement, and news of its release was reported by Punchbowl News.
- The opinion was issued around the time Todd Blanche was sworn in as attorney general, though it was not signed by him personally.
- Democratic critics, including Sen. Chuck Schumer, characterized the opinion as an effort to protect Trump and his allies from accountability.
Context
What is executive privilege?
It is the president's asserted authority to withhold certain confidential communications from the legislative and judicial branches Aol,theepochtimes.com. Historically, presidents have invoked it over communications with executive branch staff Hill,Common Dreams.
What reasoning does the Justice Department give?
The opinion argues that limiting the privilege to purely intragovernmental communications would cut the president off from sources he may need to carry out his duties and would impair his Article II functions Yahoo News,CNN International. It also says the need for confidentiality "applies to communications with private advisers just as it does with government officials," contending outside sources may be less willing to give advice if they fear disclosure Axios.
Does the opinion settle the question?
No. Justice Department opinions are not legally binding Hill,Washington Times,Yahoo. A former Office of Legal Counsel attorney, University of Kentucky law professor Jonathan Shaub, said it "really could be a pretty significant weapon" for the administration to deflect congressional investigation of private parties Axios, while the memo also states circumstances in which presidential communications do not fall under the privilege theepochtimes.com.
Where Left and Right agree, and where they split
- Where Left and Right agree
- Nobody disputes what the memo does: it extends privilege past the federal payroll, binds no one, and was written with a Democratic House and its subpoenas in view.
- Where Left and Right split
- Whether the story is about who can be compelled to answer Congress, or about whether a president can get candid advice from people who aren't on staff.
How left and right read it
Congressional oversight only works if the people advising a president can be made to answer for it, and this 21-page opinion quietly widens the circle of those who cannot — reaching private advisers who draw no federal paycheck, and even direct advisers' talks with private citizens. It was posted Monday evening with no announcement, as Democrats campaign for the House and the subpoena power that comes with it. That timing is the argument. Accountability should not depend on who signs your check.
“The legal memo boldly formalizes an aggressive stance the past administrations had nodded to but never publicly laid out so comprehensively.” — CNN International
Candid counsel is worthless if every conversation becomes a future exhibit, and a president's authority to deliberate does not hinge on whether the adviser draws a federal salary. What the Office of Legal Counsel produced is reasoning on the record — 21 pages signed by T. Elliot Gaiser, bounded by three stated conditions, and binding on no one. That is preparation, not evasion. Argue the limits in writing now, before the subpoenas arrive.
“Justice Department opinions are not legally binding, but the memo illustrates that the White House is already preparing its response to a slew of investigations should Democrats gain control of the House.” — Washington Times
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