The Justice Department has issued a new legal opinion saying President Donald Trump may invoke executive privilege over certain communications with outside advisers who do not work for the federal government, potentially shielding those advisers from congressional investigations and other legal proceedings.
The 21-page opinion from the Office of Legal Counsel says the privilege can apply when confidential communications with private advisers concern "official presidential decisionmaking" and involve the president or his immediate advisers. The opinion is not binding but represents the Justice Department's interpretation of the scope of presidential confidentiality.
"The need for presidential confidentiality applies to communications with private advisers just as it does with government officials," Assistant Attorney General T. Elliot Gaiser wrote according to CBS News, arguing that presidents may seek outside expertise unavailable within the government.
The opinion comes months before November's midterm elections, when control of Congress is at stake. Reuters reported August 8 that House Democrats are preparing investigations should they regain the majority, including potential subpoenas and document requests targeting companies, contractors and financial entities connected to Trump's administration, family and political orbit.
Democrats reportedly expect the White House to resist requests directed at the executive branch and have discussed obtaining information instead from private entities. "We're not going into this to impeach," a senior Democratic aide told Reuters, saying the initial goal would be to build evidence through investigations.
One person who could benefit from the Justice Department's interpretation is Boris Epshteyn, Trump's personal attorney and outside adviser. Epshteyn has been subpoenaed by the American Bar Association in litigation concerning executive orders targeting law firms. The Justice Department has sought to quash the subpoena, saying he provided Trump with "privileged and confidential advice."
Axios reported in June that Epshteyn, despite holding no government position, maintains extensive access to Trump, frequently speaks with him by phone and attends Oval Office meetings. The outlet described him as one of the president's most influential outside advisers, particularly on legal matters.
The new opinion follows another OLC interpretation issued in April that concluded Trump does not have to comply with the Presidential Records Act, a post-Watergate law requiring presidents to preserve certain records. A federal judge subsequently ordered White House officials to comply with the law after the opinion was challenged in court.
