The Department of Justice Office of Legal Counsel issued an opinion this week that the President’s executive privilege covers communications with private individuals, and not just certain government employees.
The opinion represents an effort to expand the privilege beyond what any court has specifically held. I say “an effort” because the OLC memo itself doesn’t have any mandatory legal authority; it’s just the opinion of the office that advises the Executive Branch on legal questions. Still, OLC opinions can be persuasive in court.
The opinion comes at an opportune time for President Trump: the Administration is in the middle of a dispute over the American Bar Association’s subpoenas for documents and testimony from Boris Epshteyn, a private individual, in the ABA’s case challenging the Administration on its crack-down on law firms. The Administration seeks to quash the subpoenas based on executive privilege. Moreover, the Administration may be laying groundwork for defenses against anticipated congressional inquiries and subpoenas, should the House (or Senate, or both) flip in the midterms.
OLC wrote that the privilege applies to communications with private individuals for exactly the reason why it applies to certain government-employee presidential advisors: to allow the President to receive frank, open, and honest advice, without fear of later public disclosure, in order to “ensure that presidential decision-making is of the highest caliber, informed by honest advice and full knowledge.”
OLC gave three qualifiers. First, the privilege only covers communications around official actions (but at the same time recognizing that those actions are quite broad and often entwined with apparently unofficial actions). Next, the privilege only applies “to communications with the President, or communications solicited and received by the President or his direct advisers.” Third, “the communication [must be] confidential at the time of its creation and . . . the President [must] continue to treat it as such.”
Though the OLC memo doesn’t say much about how the privilege operates, remember that it’s a qualified privilege, not an absolute one. That means that a person or entity requesting information can overcome the privilege by demonstrating a sufficiently important need for the information. The OLC memo doesn’t attempt to change this, but it does say that invocation of the privilege “is rightly difficult to overcome.”
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