Attorney General Todd Blanche defended a DOJ opinion extending executive privilege to certain communications with private advisers, saying it clarifies—not creates—legal doctrine. Blanche rejected Democratic criticism that the memo would "hide corruption," noting privilege can apply even to unpaid advisers when their advice is tied to presidential duties. The OLC stressed the privilege is limited to communications made in the performance of official responsibilities, amid ongoing disputes over the Presidential Records Act and a federal judge's order requiring compliance.
Blanche: DOJ Memo on Executive Privilege 'Clarifies' Existing Law, Not a New Theory
Blanche says DOJ opinion on executive privilege is not ‘any novel legal concept’
Attorney General Todd Blanche on Sunday rejected criticism of a recent Justice Department opinion that extends executive-privilege protections to certain communications between the president and private, non-governmental advisers. Blanche told Fox News Sunday the Office of Legal Counsel (OLC) memo "wasn't any novel legal concept" but rather a clarification of longstanding DOJ positions.
Host Shannon Bream played a clip of Rep. Robert Garcia (D-Calif.) telling MSNBC that the OLC opinion amounted to "hiding corruption" and would allow the president "to do whatever he wants to do." Blanche pushed back, saying the guidance simply explains when privilege can apply to outside advisers who are advising the president in the course of official duties.
"We have to let a president feel like he can have frank conversations with individuals and get honest feedback about running this country without the risk of being used by him and others," Blanche said. "This wasn't any novel legal concept."
Blanche emphasized that whether an adviser is paid is not determinative. "Even if an adviser is not being paid to advise the president, if you're providing the right type of advice, there are circumstances where it should absolutely be privileged," he said, adding that the memo simply clarifies how existing privilege principles apply.
The OLC's Monday opinion makes clear that the asserted privilege is not absolute. According to the memo, the president may assert executive privilege for communications with outside advisers only when those communications are "in performance of [a President's] responsibilities," "of his office," and "made in the process of shaping policies and making decisions."
Legal observers and critics have interpreted the guidance as part of broader preparations by the Trump administration to respond to potential congressional investigations should Democrats regain control of the House. Opponents say the change could be used to shield information; supporters insist it protects candid presidential decision-making.
The OLC opinion followed an April assessment that the White House should not be required to comply with the Presidential Records Act (PRA), which generally requires preservation of White House records, including staff communications. The next month, a federal judge ordered President Trump and his administration to comply with the PRA, citing constitutional text, Supreme Court precedent, interpretive canons, and decades of practice.
While the legal debate continues, the OLC guidance highlights the balance courts will weigh between executive confidentiality and transparency obligations under federal law.
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