The Justice Department’s Office of Legal Counsel (OLC) put out a new opinion earlier this week arguing that President Donald Trump can assert executive privilege over communications with advisors even if they do not work at the White House or within the government at all.
Experts tell TPM that the legal opinion is likely an effort from the Trump administration and his DOJ to preemptively interfere with congressional investigations that Democrats plan to launch if they manage to take control of one or both chambers after the 2026 midterms.
“The legal opinion has more holes in it than a slice of Swiss cheese,” Charles Tiefer, professor emeritus at the University of Baltimore School of Law, told TPM. “It’s clearly a devious tactic to try to cover up the investigations into Trump’s corruption before they even get started.”
David Super, law professor at the Georgetown University Law School, agreed when asked if he sees the OLC opinion as a preemptive measure to hinder congressional investigations into the Trump administration.
“I’m sure that’s exactly what they’re trying to do here,” Super said.
Tiefer, who was previously the acting general counsel and deputy general counsel to the U.S. House of Representatives, described the opinion as a “clear attempt to create defensive barriers in advance of congressional investigations.”
Experts told TPM that individuals that may be called to testify in front of Congress may end up trying to rely on this OLC memo to get out of testifying or giving over documents.
They will say “they can’t speak ‘cause they have executive privilege,” Tiefer told TPM. That is if they even show up at all, he added.
“Presumably, the administration would try to help those people avoid testifying by sending a letter from President Trump saying, ‘I’m invoking executive privilege over what Joe the oil executive has been subpoenaed to testify about,’” Super said. This memo helps them lay the foundation ahead of time for Trump to be able to make those claims, Super added.
Claims of executive privilege usually concern communications between the president and his subordinates. In contrast, Tiefer said, “this opinion has nothing to do with the normal situation of a president getting advice from his subordinates about his duties.”
The memo appears to have been written in response to a request from Trump’s counsel to determine whether the president could assert executive privilege “to protect communications between himself and private advisers.”
Trump, of course, is known for seeking advice from allies outside the White House — including congressional lawmakers as well as personal friends and business acquaintances.
“Executive privilege can apply to presidential communications with private advisers so long as the communications relate to official presidential decisionmaking, involve or reflect communications with the President or his direct advisers, and are confidential,” the OLC opinion argues.
Further on, the opinion notes, “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. Such an outcome not only would impair the President’s Article II functions, but ultimately would harm the public itself.”
Tiefer told TPM that the 21-page OLC opinion is “extremely long on rhetoric and equally extremely short on specific examples” in setting precedent for the office’s claims that executive privilege extends to presidential communications with private advisers.
Super said that the “important parts of the OLC opinion rely overwhelmingly on their own prior opinions rather than cases.”
“I will tell you that the strongest legal authority I know is what I said to you when we last spoke — but you’re welcome to laugh at that,” Super added. “Because of course we always agree with ourselves, or most of us mostly agree with ourselves. But that doesn’t have to persuade anyone else. They are not a court. There is no law that gives them authority to make binding opinions … So citing themselves is not very helpful.”
In contrast, there are examples of congressional investigations that have relied on evidence obtained from private individuals’ communications with presidents. The Jan. 6 investigation is one of them, Tiefer told TPM.
“If you look at the ringleaders of the president’s legal schemes in that case … those were Rudy Giuliani and John Eastman. They were private individuals. They had to give evidence … No successful executive privilege claim for them,” Tiefer said.
Giuliani and Eastman did try to assert executive privilege over the communications the Jan. 6 Select Committee asked them to turn over as a part of their investigation. By the time they made their claims, however, Trump was no longer in office and federal judges rejected many of their executive privilege and attorney client privilege claims.
If Democrats take control of one or both of the chambers in the midterms and start their own congressional probes, Trump will still be in office. Experts agree that Trump will almost certainly try to claim executive privilege aggressively over the testimony of individuals who Democrats may subpoena.
“Then the question will come: Is that privilege justified?” Super said. “The OLC is trying to put down a marker saying, ‘Yes, it is justified. It’s very broad. It’s very sweeping. It’s very protective.’ The congressional investigators in that case will surely try to make the opposite argument … And then a court, potentially, will have to decide whether it finds the OLC opinion persuasive. The court is absolutely under no obligation to defer to it, to give it special weight or anything of the kind.”
