President Trump’s outside advisers — people who do not hold federal government jobs — could receive new protection from future congressional and legal scrutiny under a newly released opinion from the Justice Department’s Office of Legal Counsel.
In a 21-page opinion made public Monday evening, the Office of Legal Counsel advised the White House that a president may seek to extend executive privilege — the authority to shield certain confidential communications within the executive branch — to private advisers who provide direct counsel to him, even if they are not White House employees.
The opinion states that executive privilege may cover communications with a president’s private advisers when those discussions are confidential, involve the president and his direct advisory team, and “relate to official presidential decisionmaking.”
Although the opinion is not legally binding, its timing is notable. It arrives months ahead of a potentially heated midterm election in which Democrats could win control of one or both chambers of Congress. Such an outcome could trigger a wave of investigations and broaden the group of individuals who might claim protection against testimony or inquiry.
Presidents have often invoked executive privilege to protect conversations with executive branch officials, including White House lawyers. But this new interpretation could offer similar cover to Mr. Trump’s outside legal team and other private advisers, potentially limiting what they would be required to disclose in congressional investigations or court proceedings.
“At bottom, the purpose of executive privilege is to protect the government’s decisionmaking processes,” the opinion said. It was signed by Assistant Attorney General T. Elliot Gaiser, who heads the Office of Legal Counsel.
“The need for presidential confidentiality applies to communications with private advisers just as it does with government officials. A President might determine that a private adviser has unique insight or experience, and that full knowledge about a contemplated decision cannot be obtained through consultation with only government employees,” the opinion continued.
The opinion is not the first from Mr. Trump’s Justice Department Office of Legal Counsel to depart from historical precedent.
In April, Gaiser authored an opinion that said the federal law enacted in the wake of the Watergate scandal that requires the president to preserve certain documents and turn them over to the National Archives at the end of his administration is unconstitutional, and that Mr. Trump does not need to comply with it.
Weeks after the opinion was published, a federal judge in Washington, D.C. ordered White House staff and President Trump’s top advisers to comply with the law after a government oversight group and the American Historical Association sued to invalidate the opinion.
The opinion could also shield outside Trump adviser and lawyer Boris Epshteyn, who was recently subpoenaed by the American Bar Association in a lawsuit filed last year related to the White House’s alleged “intimidation policy” against major law firms that resulted in executive orders targeting four firms and deals made with several others.
The American Bar Association is seeking communications between Epshteyn and the White House, and the DOJ has moved to quash the subpoena, arguing Epshteyn “provided the President with privileged and confidential advice in connection with the Executive Orders at issue.”
