New DOJ Memo Broadens Executive Privilege, Could Let Trump Shield Private-Adviser Communications

A newly released memorandum from the Justice Department's Office of Legal Counsel asserts that presidential "executive privilege" can extend to communications between President Donald Trump and private advisers — and, the memo argues, may allow those advisers to shield related communications with private citizens.

What the Memo Says

Signed by Attorney General T. Elliot Gaiser, the document adopts a broad definition of "private advisers." It states that executive privilege can apply "so long as the communications relate to official presidential decision making, involve or reflect communications with the President or his direct advisers, and are confidential."

"For the purposes of this memorandum, we use the term 'private advisers' to include anyone the President consults outside the Executive Branch, whether they be members of the public, state officials, or employees of other branches of the federal government," the memo says.

Political and Oversight Implications

Punchbowl News, which first reported the memorandum, warned that the guidance could limit congressional oversight if Democrats regain control of the House after the November midterms. As Punchbowl reporter Jake Sherman noted, the memo could narrow the scope of subpoenas and inquiries into the President and his team.

Context and Background

President Trump has previously sought to invoke executive privilege in several contested settings — notably to block release of White House visitor logs from his first term and repeatedly during proceedings tied to the Jan. 6, 2021, Capitol attack. The new memo arrives amid ongoing scrutiny of classified documents that prosecutors say Trump removed to Mar-a-Lago after his presidency; some of those files were described as relating to his business interests.

In a January 2023 memo, special prosecutor Jack Smith wrote that "Trump possessed classified documents pertinent to his business interests — establishing a motive for retaining them. We must have those documents," an assertion reported by MS NOW.

Bottom Line

The OLC memorandum marks a significant expansion in the Justice Department's framing of executive privilege. If accepted by courts or relied upon by the White House, it could make it harder for congressional investigators to obtain records or testimony involving outside advisers — raising new legal and political fights over the limits of presidential confidentiality.