Overview
- The Justice Department’s Office of Legal Counsel published a 21-page opinion signed by Assistant Attorney General T. Elliot Gaiser that says the president may assert privilege over conversations with outside advisers.
- The memo defines “private advisers” as anyone the president consults outside the executive branch and limits protection to communications that relate to official decisionmaking, involve or reflect the president or his direct advisers, and remain confidential.
- The administration has already invoked the opinion in litigation by asking a court to quash an American Bar Association subpoena for communications involving outside adviser Boris Epshteyn.
- Legal scholars and government watchdogs say the opinion expands executive secrecy and doubt courts will accept its broad theory, while White House and DOJ officials point to past OLC work to justify the stance.
- The memorandum binds executive-branch practice but is not binding on courts, so judges will likely decide how far the new test reaches and how it could affect future congressional oversight after the November elections.