The Justice Department's Office of Legal Counsel issued a 21-page opinion Monday stating that executive privilege can extend to Trump's outside advisers who don't work for the federal government, so long as communications relate to official presidential decisionmaking and are confidential. The opinion, signed by Assistant Attorney General T. Elliot Gaiser, is non-binding but arrives months ahead of midterm elections that could hand Democrats congressional investigative power.
The opinion could shield outside adviser Boris Epshteyn, who was subpoenaed by the American Bar Association over communications related to the White House's alleged 'intimidation policy' against law firms. The DOJ has already moved to quash that subpoena, arguing Epshteyn provided privileged advice connected to executive orders targeting several firms.
This is not the OLC's first break from precedent under the current administration: in April, Gaiser authored an opinion declaring the post-Watergate law requiring presidential document preservation unconstitutional, only for a federal judge in May to order compliance anyway after a lawsuit from a government oversight group and the American Historical Association.
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