On Monday, the Justice Department’s Office of Legal Counsel issued an opinion arguing that President Trump can assert executive privilege not only over communications with his White House staff, but with private advisers outside government entirely. The opinion, written by Assistant Attorney General T. Elliot Gaiser, signals exactly how this Justice Department intends to respond once real oversight comes knocking, whether from Congress, the courts, or investigators asking questions this administration doesn’t want answered.
In response, the Not Above the Law coalition co-chairs Lisa Gilbert, Praveen Fernandes, Kelsey Herbert, and Brett Edkins issued the following statement:
“Todd Blanche’s Justice Department is doing what it always does: attempting to shield Donald Trump and the people around him before anyone can hold them accountable. This opinion is about protecting Trump and his allies from any real accountability, no matter where the questions come from – Congress, the courts, or investigators of any kind. Every senator who voted to confirm Blanche knew exactly what kind of Justice Department they were signing off on. They own it now.”
Here’s what the record shows:
THE OPINION BREAKS WITH TRADITIONAL LIMITS ON EXECUTIVE PRIVILEGE.
Executive privilege has covered communications with executive branch staff. Gaiser’s opinion extends it to private advisers outside government, arguing their counsel matters just as much to a president’s decisions.
DOJ’S OWN RATIONALE IS ABOUT SHIELDING THE PRESIDENT FROM SCRUTINY, NOT RUNNING THE GOVERNMENT.
Gaiser’s own words give away the point. He wrote that executive privilege exists to protect the government’s decision-making process from outside scrutiny, and that a president needs freedom from that scrutiny to decide and act quickly. This serves as a shield for the president, not a tool for governing.
THIS IS ABOUT TIMING, NOT PRINCIPLE.
The Hill reports the opinion signals how the Trump administration is preparing for an expected wave of investigations into the White House if Democrats retake the House. Blanche’s DOJ is laying the groundwork now, before oversight even begins.
THE CLAIM IS DESIGNED TO PROTECT TRUMP’S BUSINESS DEALINGS.
OLC says the privilege only covers advice tied to the president’s official duties. But as The Hill notes, it could still be used to attempt to block investigations into a president who is in constant contact with business leaders and has made deals of his own while in office. The same pattern this coalition has documented before continues: rules bent to protect Trump and his allies’ financial interests from the scrutiny everyone else faces.
THIS IS NOT THE FIRST TIME THIS DOJ HAS TRIED TO WALL OFF THE PRESIDENT FROM ACCOUNTABILITY, AND IT WAS ALREADY REJECTED ONCE.
In April, OLC argued the White House doesn’t have to comply with the Presidential Records Act, the law requiring preservation of White House records. A federal judge rejected that argument in May, citing the Constitution’s text, longstanding precedent, and decades of practice. Same project. Different paperwork.