DOJ office says Trump's outside advisers can be shielded by executive privilege

A new Justice Department opinion suggests that President Trump's outside advisers may be shielded from future congressional and legal investigations by the power of executive privilege. In a 21-page document published Monday, the Office of Legal Counsel stated that the president can extend executive privilege to non-White House advisers who provide him with direct advice if their communications relate to official presidential decision-making, are confidential, and involve conversations between the president and his inner team of advisers.

The opinion, which is not binding, comes ahead of a critical midterm election that could lead to a Democratic takeover of Congress, potentially sparking investigations and expanding the number of individuals protected from testimony or investigation. Executive privilege is typically invoked by the president in conversations with executive branch staff, but this step could also protect Trump's outside legal counsel and other advisers from divulging information in future congressional or legal proceedings.

The Office of Legal Counsel's goal is to safeguard the government's decision-making processes. The need for presidential confidentiality extends to communications with private advisers just as it does with government officials. This is not the first OLC opinion by the Trump Justice Department that diverges from historical norms.

In April, Assistant Attorney General T. Elliot Gaiser argued that a post-Watergate law requiring presidents to preserve certain documents and turn them over to the National Archives is unconstitutional, and that Trump is not obligated to comply. A federal judge subsequently ordered compliance with the law, but the OLC opinion could further shield Trump's outside adviser Boris Epshteyn, who has been subpoenaed by the American Bar Association in a lawsuit related to alleged White House intimidation of law firms.