Justice Department Opinion May Protect Trump’s Advisers

The Justice Department’s Office of Legal Counsel released a new opinion, indicating that President Trump’s outside advisers might receive protection from future congressional and legal investigations. This opinion, spanning 21 pages, enables the extension of executive privilege to advisers outside of the White House, provided they offer direct advice to the president.

According to the opinion, if communications pertain to official presidential decision-making, remain confidential, and involve direct conversations with the president, these advisers could be shielded by executive privilege. Although the opinion is not legally binding, it arrives during a politically sensitive period ahead of midterm elections that could favor Democrats in Congress.

Traditionally, executive privilege covers interactions within the executive branch, especially involving government lawyers. However, this recent development might protect Trump’s private legal counsel and other advisers from participating in future congressional probes or legal proceedings. The opinion, signed by Assistant Attorney General T. Elliot Gaiser, emphasizes the necessity of confidentiality in presidential communications, whether with public officials or private advisers. This reasoning suggests that a president might find crucial insight from private advisers unavailable from government employees alone.

Gaiser previously authored another opinion stating the unconstitutionality of a federal law demanding the preservation of presidential documents post-administration, a law established after the Watergate scandal. This opinion faced legal challenges, prompting a Washington, D.C. judge to mandate compliance with the law from Trump’s administration.

The current opinion could also affect legal proceedings concerning Boris Epshteyn, an adviser subpoenaed by the American Bar Association. They seek details on communications between Epshteyn and the White House related to alleged intimidation of major law firms. The DOJ argues that Epshteyn provided privileged advice on executive orders under scrutiny, aiming to nullify the subpoena.