Trump DOJ formally stakes out bold claim that presidential advisers outside government are protected by privilege

(CNN) — Communications that President Donald Trump has with advisers who don’t even work for his administration can be protected by executive privilege, the Justice Department said in a memo Monday evening that comes amid lawsuits and a possible Democratic takeover of Congress.

The legal memo boldly formalizes an aggressive stance the past administrations had nodded to but never publicly laid out so comprehensively.

“Restricting executive privilege to purely intragovernmental communications would foreclose the President from relying on an array of important sources that he may find necessary to the effective discharge of his responsibilities of office,” the new opinion from the DOJ Office of Legal Counsel said. “Such an outcome not only would impair the President’s Article II functions, but ultimately would harm the public itself.”

Before Trump, fights over protections for presidential communications with private advisers were uncommon because presidents were rarely depending on individuals outside the executive branch for private conversations that shaped public policy.

But Trump has been known to seek input from a constellation of allies outside the White House, including from Congress, the business world and childhood friends.

The question of whether privilege protects a president’s communications with advisers outside of the executive branch has never been tested directly in court, according to Jonathan Shaub, a University of Kentucky School of Law professor who served in the Obama administration’s OLC. And while OLC memos do not have the weight of a court’s opinion, absent a court order contradicting them, they do control how the executive branch views the law.

“I would say it’s not inconsistent with past positions,” Shaub told CNN. “But it’s never been stated publicly, because the office understands how extreme this is outside the world of OLC.”

When Democrats took over the House in 2018, their investigations of the first Trump administration prompted novel legal disputes over what information lawmakers could obtain about both his personal conduct and the conduct of the government. If congressional Democrats regain subpoena power after the Novembers elections, they could face an even more recalcitrant executive branch, emboldened by a 6-3 conservative majority Supreme Court that has expressed a broad view of presidential powers and immunity.

But before that, the arguments laid out in the memo could be relevant in an ongoing legal case brought by the American Bar Association challenging the president’s crackdown on law firms that have opposed his agenda.

The DOJ has teed up executive privilege arguments in an effort to block subpoenas for testimony and documents issued to Boris Epshteyn, who does not work in the administration but was instrumental in the deals the White House reached with law firms seeking to avoid executive orders that targeted their operations.

DOJ has described Epshteyn as Trump’s personal attorney, but has also said in court filings that the conversations he “may or may not have had with the President, or his close advisers,” would be privileged.

The administration has also argued that even “revealing the identity of whom the President consulted, or the content of any such consultations, could chill participation in future deliberations, undermining the President’s access to the best advice, therefore undermining the quality of presidential decision-making and ability to carry out the duties of the presidency without interference.”

The new OLC opinion provides no context for why the Justice Department is issuing the formal memo now, and the Justice Department did not respond to a CNN inquiry about the timing and whether it has a connection to the Epshteyn subpoena litigation.

Monday’s memo points to past instances where the Justice Department has asserted that privilege can extend to presidential advisers outside the executive branch, referencing a 2007 OLC memo that said executive privilege applied to the communications between Congress and the White House regarding President George W. Bush’s firing of several US attorneys.

In backing the stance, the latest DOJ memo stated, “The unrestrained ability to gather information is essential to the President’s executive function.” It said that historically, president have drawn on the expertise of non-government advisers, citing to examples in the Andrew Jackson and Franklin Delano Roosevelt administrations.

“A President might determine that a private adviser has unique insight or experience, and that full knowledge about a contemplated decision cannot be obtained through consultation with only government employees,” the OLC said. “Indeed, history is replete with examples of Presidents using private advisers as trusted confidants for these reasons.”

The OLC argued that, if privilege was not extended to those communications, a president might not be able to get candid advice from those counselors.

“Such individuals may be reluctant to provide advice on controversial or unpopular policies based on a fear of public disclosure or potential ramifications for their personal endeavors,” the opinion said. “The President must be able to protect the confidentiality of his communications with these advisers if he is to ensure that presidential decision making is of the highest caliber, informed by honest advice and full knowledge.”

The OLC memo said that it was only weighing in on conversations a president has with private advisers that relate to his official duties in the White House.