DOJ Extends Executive Privilege to Trump's Outside Advisers Ahead of Midterms

The Justice Department's Office of Legal Counsel issued a 21-page opinion on August 10 concluding that executive privilege can extend to Trump's outside advisers who are not federal employees, so long as their communications relate to official presidential decisionmaking and remain confidential. The opinion, signed by Assistant Attorney General T. Elliot Gaiser, is non-binding but represents the administration's legal position. It could shield outside adviser Boris Epshteyn, who was subpoenaed by the American Bar Association over communications tied to the White House's pressure campaign against law firms; DOJ has moved to quash that subpoena citing the new opinion.

The timing, months before a midterm election that could give Democrats subpoena power in one or both chambers, raises the stakes: if adopted by courts, the opinion would expand the pool of people who could resist testifying to Congress about their advice to the president, extending a confidentiality doctrine traditionally limited to executive-branch officials.

The opinion has not been tested in court. It follows an earlier OLC opinion, since rejected by a federal judge, that argued Trump need not comply with the Presidential Records Act.