Turning Limits Into Options

Executive privilege has always been a shield for the government's own people — the officials whose confidential advice a president needs to do his job. This month the Justice Department's Office of Legal Counsel quietly widened it. In a non-binding opinion, OLC concluded that the privilege now covers private advisers who never took an oath or held a post, naming Boris Epshteyn, a Trump confidant, as the beneficiary. The department is already using the opinion to quash a subpoena for Epshteyn's testimony about executive orders aimed at law firms. ^[1] The reasoning is plain on its face.

The need for presidential confidentiality applies to communications with private advisers just as it does with government officials. — Office of Legal Counsel

One rule, widened. The same motion is running through the rest of the legal machinery. In March the Justice Department proposed a rule letting the Attorney General pause state bar ethics investigations into its own lawyers — a state's power to discipline a lawyer, switched off at the department's discretion. ^[2] The deputy attorney general, Todd Blanche, put the aim in plain terms.

We're going to do everything we can to take these activist bars out of the picture. — Todd Blanche

And the solicitor general, D. John Sauer, is pressing the Supreme Court to overturn Humphrey's Executor, the 1935 precedent that shields independent agency officials from at-will removal. ^[3]

The President must control all exercises of executive power. — D. John Sauer

Each is a different mechanism doing the same thing: a limit that once stood outside the president's reach — a privilege rule, a bar's ethics code, a statutory protection — becomes a decision the executive gets to make. The same conversion runs through the surveillance machinery, where the threshold for government attention keeps dropping. The FBI now flags people for the Terrorist Screening Center based on online search patterns; a suspicious query can trigger review, a formal investigation, travel restrictions. ^[4] ICE has folded cell-tower data, license scans, and student visa records into a single Palantir tracking system, now expanding under a $30 million contract. ^[5] USCIS screens the social media of legal immigration applicants, treating "anti-American" views as grounds to deny benefits. ^[6] A federal appeals court has handed DOGE access to databases holding personal data on more than 40 million Americans. ^[7] The workforce version is the most legible. The administration reclassified roughly 8,000 senior civil servants as at-will, stripping the protections that made their jobs independent of politics. ^[8] It pushed out more than 387,000 federal workers, stripped collective bargaining from over a million, then began rehiring with ideological alignment as an explicit criterion. ^[9][10] The personnel chief, Scott Kupor, described the standard without embarrassment.

The services that Americans have come to expect are not going to be there. — Max Stier

Three arenas, one shared logic. What ties them together is the story the administration tells about why none of this is a power grab. The Justice Department has stood up a "Weaponization Working Group" to investigate the investigators — the premise being that the justice system was already corrupted, that the last administration turned law enforcement into a political instrument. ^[11] If that premise holds, then removing the constraints is not demolition but repair: pausing bar investigations is cleaning up activist bars, reclassifying civil servants is restoring democratic control, widening privilege is shielding a president from a weaponized subpoena. The department is using the machinery of justice to argue that justice was already weaponized. The courts have not simply rolled over. Plaintiffs have won more than twice as often as the administration across hundreds of lawsuits, and when judges rule against it, the administration attacks the judges rather than the reasoning — the president demands impeachment, the Justice Department files misconduct complaints. ^[12] A Rhode Island court blocked the dismantling of four agencies outright, and the Supreme Court itself stopped the "Liberation Day" tariffs. ^[13][14] But the administration's response to losing is the tell. An Associated Press review found it violated court orders in at least 31 lawsuits and more than 250 immigration petitions in 15 months. ^[15] A federal judge put the novelty of it plainly.

Yet each time this Court rewards noncompliance with discretionary relief, it further erodes respect for courts and for the rule of law. — Sonia Sotomayor High School

Meanwhile the Supreme Court has granted 31 of the administration's 32 emergency petitions — agency dismantling, aid withholding, unilateral tariffs among them. ^[16] Inside that majority, one justice asked the question the whole arrangement leaves hanging.

What president's ever going to give that power back? — Neil Gorsuch