Politics
Justice Department legal memo shields private presidential advisers from subpoenas
A new Office of Legal Counsel opinion asserts executive privilege extends to non-governmental advisers, drawing criticism from legal experts over its impact on oversight.
The short version
- A recent Office of Legal Counsel (OLC) opinion asserts that private, non-governmental advisers to a president can invoke executive privilege to avoid responding to subpoenas.
- Legal experts criticize the memo's reasoning, arguing it misrepresents judicial precedent and weakens the ability of courts and Congress to investigate presidential conduct.
- The full practical impact depends on whether federal courts choose to accept or reject the OLC's expanded interpretation during future subpoena disputes.
Key facts
- A recent memo from the Office of Legal Counsel maintains that private advisers to a president can decline to respond to subpoenas by asserting executive privilege.[The Guardian]
- During the 2019 Mueller investigation, the Trump administration relied on an OLC opinion regarding testimonial immunity to bar former White House Counsel Don McGahn from testifying before the House Judiciary Committee.[The Guardian]
- Federal Judge Ketanji Brown Jackson rejected the executive privilege claim in the McGahn case, which later resulted in a settlement allowing McGahn to testify behind closed doors.[The Guardian]
- Historically, courts have frequently rejected broad assertions of executive privilege, including key rulings involving Richard Nixon's White House tapes and Bill Clinton's responses to subpoenas.[The Guardian]
What remains uncertain
- Whether federal courts will give weight to or accept the OLC's expanded executive privilege interpretation in future legal challenges remains uncertain.[The Guardian]
- Commentators speculate that the timing of the OLC memo may be aimed at shielding the administration from prospective congressional investigations if control of the House or Senate changes.[The Guardian]