OLC Memo Expands Executive Privilege To Private Advisers — Experts Call It A Preemptive Shield For Trump

The Justice Department's Office of Legal Counsel (OLC) issued a 21-page opinion this week concluding that the president may assert executive privilege over communications with private advisers who are not government employees or White House staff. Legal scholars warn the memo appears designed to create a broad, preemptive legal barrier against future congressional investigations should Democrats gain control of one or both chambers after the 2026 midterms.

What The OLC Opinion Says

The opinion—apparently written in response to a request from President Trump's counsel—states that "Executive privilege can apply to presidential communications with private advisers so long as the communications relate to official presidential decisionmaking, involve or reflect communications with the President or his direct advisers, and are confidential." The memo argues that limiting privilege to strictly intragovernmental communications would hamper a president's ability to consult outside experts and could impair Article II functions.

Expert Criticism

Critics say the opinion relies heavily on prior OLC memoranda rather than binding court precedent and offers few concrete examples to justify extending privilege so broadly. Charles Tiefer, Professor Emeritus at the University of Baltimore School of Law, called the memo "a devious tactic to try to cover up the investigations into Trump's corruption before they even get started."

"The legal opinion has more holes in it than a slice of Swiss cheese," Tiefer told TPM, adding that the memo is heavy on rhetoric and light on factual support.

David Super, a Georgetown law professor, likewise criticized the opinion for leaning on OLC's own prior conclusions rather than judicial decisions. "They are not a court. There is no law that gives them authority to make binding opinions … So citing themselves is not very helpful," Super said.

Practical Consequences And Past Examples

Legal experts warned that the memo could be invoked by private allies subpoenaed by Congress, who might refuse to testify or to produce documents on the basis of asserted executive privilege. One potential tactic would be a presidential letter asserting privilege on behalf of a private witness, which Super described hypothetically as a way the administration might try to block testimony.

But there are precedents where private advisers were compelled to provide evidence in congressional probes. Tiefer pointed to the Jan. 6 investigation: figures such as Rudy Giuliani and John Eastman—private citizens—were asked to turn over communications, and many of the privilege claims tied to those materials were rejected by courts once asserted after Trump left office.

Who Decides In The End?

Ultimately, courts—not the OLC—will decide how far executive privilege extends. Even if the OLC sets a departmental position, judges are under no obligation to defer to it. If Democrats win midterm control and open new investigations while Trump remains president, expect aggressive assertions of privilege and ensuing litigation to determine whether the OLC's broader view of privilege will be accepted by the judiciary.

Bottom line: The OLC opinion signals a strategic legal posture aimed at protecting presidential communications with private advisers, but its reliance on internal memoranda and lack of binding precedents mean its ultimate effect will be determined in court.