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A new Justice Department memo argues the president can assert executive privilege not just over communications with his White House staff but also with “private advisors” outside of government, an interpretation that would broaden the number of individuals President Trump could try to shield from congressional investigations.
The Monday opinion from DOJ’s Office of Legal Counsel isn’t binding but nonetheless signals the Trump administration is thinking about how to respond to an expected bevy of investigations into the White House should Democrats retake the House.
Traditionally, the president may assert executive privilege only over communications with executive branch staff.
But OLC argues the counsel the president might get from those outside the government could be just as important to the White House and also merits protection.
“At bottom, the purpose of executive privilege is to protect the government’s decisionmaking processes,” T. Elliot Gaiser, assistant attorney general for OLC, wrote in the opinion.
“The interests motivating the privilege are at their apex when it comes to decisions of the President. The need for ‘candid, objective, and even blunt or harsh opinions,’, is all the more important for the President, who is tasked with making ‘the most sensitive and far-reaching decisions entrusted to any official under our constitutional system,’” he added.
“Without a promise of confidentiality, the President’s ability to ‘decide and act quickly’ on matters of unrivaled importance would be seriously hindered.”
OLC said the claim is not absolute and that the president could only assert executive privilege for discussions with outside advisors that are “limited to communications ‘in performance of [a President’s] responsibilities,’ ‘of his office,’ and made ‘in the process of shaping policies and making decisions.’”
Nonetheless, it could be used in an effort to stymy congressional investigations, particularly for a president routinely in touch with business leaders and who has hatched several business deals while in office.
Punchbowl was the first to report the memo.
The opinion is not the first under the Trump administration that has sought to limit
In April, OLC determined that the White House should not have to comply with the Presidential Records Act, which mandates the broad preservation of White House records, including communications between staff.
In May, a federal judge ordered the Trump administration to continue to comply with the law, finding “the original public meaning of the text of the Constitution, canons of interpretation, Supreme Court precedent, general principles of property law, and almost 50 years of practice confirm that Congress has the enumerated power to regulate presidential records under the [Constitution’s] Property Clause.”
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