The Justice Department’s Office of Legal Counsel said late Monday that executive privilege can cover some presidential communications with private advisers. The opinion says Donald Trump can extend that protection to private legal advisers who directly counsel him on sensitive matters, a step that could affect subpoenas and investigations now in motion.
Office of Legal Counsel Memo
The opinion says executive privilege can apply when the discussions relate to official presidential decisionmaking, involve communications with the president or his direct advisers, and remain confidential. In practice, that gives the privilege a narrower test than a blanket shield: the communication must fit the subject, the people involved, and the confidentiality requirement at the same time.
The Justice Department told the White House that the president has authority to extend executive privilege to private attorneys directly counseling him on particular sensitive matters. That guidance reaches beyond lawyers on the government payroll and into outside legal relationships that touch presidential decisionmaking.
Boris Epshteyn and the ABA
The immediate dispute tied to the memo involves the American Bar Association’s subpoena for information from Boris Epshteyn. The ABA subpoenaed the White House and Boris Epshteyn for correspondence tied to Trump’s executive orders targeting major law firms and White House deals with other firms.
Epshteyn is not a government official. He served as a liaison with private sector law firms, communicated with firms that collectively pledged nearly $1 billion in free legal services on Trump-aligned causes, and coordinated strategy with lawyers who represented the president in litigation with the IRS.
The White House said the communication is covered by presidential privilege, while the American Bar Association is seeking it through subpoenas. After the subpoenas, the White House issued its own demands for information from the law firms themselves.
Capitol Hill Investigations
The same guidance could also matter on Capitol Hill if Democrats regain House control in the midterm elections. Nine law firms that made White House deals have already faced questions from Democrats about the agreements and how the firms are paying off their free legal services tabs.
Rep. Jamie Raskin is likely to steer the Judiciary Committee in that event, which would put him in a position to press the same privilege issues in House investigations. For now, the memo gives the White House a legal basis to argue that some private-lawyer communications tied to Trump’s official decisionmaking should stay inside executive privilege.
How far that guidance will reach in specific subpoenas and congressional investigations is the open point left by the memo, and the first test will come where the ABA’s demand meets the White House’s privilege claim.
