Executive Privilege Can Apply to Trump’s Private Advisers, DOJ Office of Legal Counsel Says

The Department of Justice’s (DOJ’s) Office of Legal Counsel said on Aug. 10 that executive privilege—the president’s authority to withhold certain sensitive information from the legislative and judicial branches—can extend to presidential communications with nongovernmental advisers.

A memorandum opinion, signed by Assistant Attorney General T. Elliot Gaiser from the Office of Legal Counsel, states that executive privilege may cover communications with private advisers if the conversations “relate to official presidential decision-making, involve or reflect communications with the president or his direct advisers, and are confidential.”

The memo states that the president might determine that an outside adviser possesses unique insight or experience needed to fully inform a decision, particularly if the adviser has knowledge that cannot be obtained from government employees.

“The unrestrained ability to gather information is essential to the President’s executive function,” it stated.

“Whether in crafting a policy or making a final decision, the president ‘must have the freedom to seek out whom he wishes for advice,’ regardless of whether that individual is a government official or a private citizen.”

Gaiser noted in the memo that, without executive privilege, outside advisers may be reluctant to give the president advice on “controversial or unpopular policies” due to concerns about public disclosure or potential risks to their personal endeavors.

“When the President determines that consultation with such advisers is warranted, the confidence of those relationships serves the same critical purpose—promoting consideration of the full range of alternatives during presidential decisionmaking—as it does when he consults federal employees,” the memo stated.

Gaiser emphasized that restricting executive privilege to communications within the government “would foreclose the president from relying on an array of important sources that he may find necessary to the effective discharge of his responsibilities of office.”

“Such an outcome not only would impair the President’s Article II functions, but ultimately would harm the public itself,” Gaiser stated, referring to the president’s constitutional duties as head of the executive branch.

According to the memo, Congress must show that information protected by executive privilege is critical to carrying out its duties before it can overcome the president’s assertion of privilege.

In criminal proceedings, the president’s assertion of privilege can be overcome by demonstrating a specific need for the information sought and the absence of alternative sources, it stated.

The memo also outlines circumstances in which presidential communications do not fall under executive privilege, including conversations held in public places or when the president posts the contents of confidential discussions on social media platforms.