DOJ Opinion Expands Executive Privilege to Private Presidential Advisers

The Office of Legal Counsel within the U.S. Department of Justice issued a non-binding opinion stating that President Donald Trump may extend executive privilege to private, outside advisers who are not federal employees. The 21-page guidance argues that presidential confidentiality applies to communications with private advisers when those discussions relate to official decision-making, noting that presidents often require expertise unavailable within the government.

To qualify for this protection, communications must be confidential and involve the president's direct team of advisers. This interpretation expands the traditional application of executive privilege, which typically covers only government staff. The opinion follows a previous April interpretation regarding the Presidential Records Act that was later overturned by a federal judge.

The ruling has immediate legal applications in a dispute with the American Bar Association, which subpoenaed outside adviser Boris Epshteyn regarding executive orders targeting major law firms. The Department of Justice is currently moving to quash that subpoena based on the new privilege claim. Additionally, the guidance may serve as a legal shield against future congressional investigations if Democrats regain control of the House in the upcoming midterm elections.