Trump’s justice department has found a new way for presidents to avoid accountability | Claire Finkelstein
A recent memo claiming executive privilege over communications with private advisers invites corruption A recent office of legal counsel memo on executive privilege maintains that private advisers to a president can avoid responding to a subpoena by asserting the president’s executive privilege. The ability of presidents to shield communications from public view through claims of executive…
A recent memo from the Office of Legal Counsel (OLC) at the Department of Justice has raised concerns about the extent of executive privilege and its potential impact on accountability. The memo asserts that private advisers to a president can avoid testifying before Congress or in court by invoking executive privilege. This interpretation of presidential privilege is a significant departure from previous OLC opinions, which have been instrumental in maintaining transparency and preventing corruption.
The power of executive privilege has long been a contentious issue, as it allows presidents and their senior advisers to shield communications from public scrutiny. However, if courts adopt the OLC's new interpretation, it would become increasingly difficult to compel witnesses to testify in legal proceedings related to potential wrongdoing by presidents. This development could embolden presidents and their advisers to obstruct investigations, as seen in the case of former White House counsel Don McGahn.
In 2019, McGahn refused to testify before the House Judiciary Committee in connection with Robert Mueller's investigation into Donald Trump's potential obstruction of justice. The refusal was based on an assertion of "testimonial immunity," a type of executive privilege that was sought by the Trump administration. The OLC opinion that supported McGahn's position effectively rendered the first Trump administration complicit in the very obstruction they were investigating.
The implications of this memo are far-reaching, as it could set a dangerous precedent for future administrations. By granting presidents extensive power to block witnesses, this interpretation may foster a culture of corruption and undermine the rule of law. It is crucial that courts carefully consider the potential consequences of accepting such an expansive interpretation of executive privilege and ensure that accountability remains a cornerstone of our democratic institutions.
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