The US Department of Justice (DOJ) Office of Legal Counsel (OLC) issued an opinion on August 10 stating that the president can assert executive privilege over communications with 'private advisers' outside of the government.
Under the OLC opinion, 'private advisers' includes anyone the President consults outside of the Executive Branch, such as members of the public, state officials, or employees of other branches of the federal government.
The opinion specifies that executive privilege applies if the communications remain confidential, involve or reflect communications with the president or his direct advisers, and relate to official presidential decision-making.
The OLC argued that without an expectation of privacy, the president's ability to decide and act quickly on matters of importance would be seriously hindered.
Legal implications and precedents
The August 10 opinion was signed by US Assistant Attorney General T. Elliot Gaiser. The release of the opinion coincided with the day Todd Blanche was sworn in as US Attorney General.
A US DOJ official told Axios that the opinion reaffirms a position held by the office going back to at least 2007 with Paul Clement, and arguably as far back as 1972. In 2007, Paul Clement, who served as US Solicitor General and acting Attorney General, argued that executive privilege could be exerted over confidential communications with individuals outside the executive branch.
Jonathan Shaub, a University of Kentucky law professor and former OLC attorney, stated that the current interpretation goes beyond anything the office has formally ruled in the past. Shaub said the opinion 'really could be a pretty significant weapon' to deflect congressional investigations of private parties.
Punchbowl News first reported the release of the OLC memo. Jake Sherman of Punchbowl News noted that the opinion could have 'big implications' if Democrats retake the US House of Representatives after midterm elections and begin investigating the president.
Records and transparency
The Trump administration previously issued a memo claiming the post-Watergate Presidential Records Act of 1978 was unconstitutional. In May, a federal judge ordered US officials to comply with the Presidential Records Act following a previous attempt by the administration to block compliance.
White House Press Secretary Karoline Leavitt has frequently described President Trump as 'the most transparent president in history.'
The Atlantic reported that the OLC's memo could make Trump 'the most poorly documented president since at least Richard Nixon, and perhaps going back even further.'
Separately, Boris Epshteyn, Trump's senior personal counsel, is fighting a subpoena from the American Bar Association regarding administration deals with law firms.
