A new Justice Department memo from the Office of Legal Counsel argues that presidents can assert executive privilege not just over communications with White House staff but also with private advisors outside of government, according to a Monday opinion. The interpretation would broaden the number of individuals President Trump could try to shield from congressional investigations.
Executive privilege has traditionally covered communications between a president and senior aides within the executive branch. The DOJ Office of Legal Counsel serves as the authoritative interpreter of legal questions for the executive branch. This opinion marks an expansion of that traditional scope to include external private advisers who do not hold government positions.
What the Right Is Saying
Supporters of the opinion argue that presidents need access to candid advice from a wide range of experts who may not wish to serve in government but can provide valuable counsel on complex policy matters. They contend that the threat of compelled congressional testimony could discourage private individuals from advising presidents, ultimately harming decision-making.
Constitutional scholars aligned with this view argue that executive privilege exists to protect the deliberative process within the executive branch and that excluding outside advisers who contribute to those deliberations would improperly limit presidential authority. They note courts have historically given deference to executive branch claims of privilege in certain contexts.
What the Left Is Saying
Democratic lawmakers and oversight advocates argue this interpretation undermines Congress's constitutional authority to conduct investigations and gather information relevant to its legislative functions. They contend that extending privilege to private individuals—who are not subject to ethics rules, security clearances, or formal oversight processes—creates a significant loophole that could obstruct legitimate congressional inquiries.
Civil liberties organizations have raised concerns about transparency. They note that private advisers operate without the accountability structures applied to government employees, making it difficult for Congress to obtain testimony or documents from these individuals when investigating executive branch actions.
What the Numbers Show
The DOJ Office of Legal Counsel issued its opinion on Monday, January 27, 2026. The memo has not been made fully public but has been reported by multiple news outlets. Executive privilege claims have increased significantly during the current administration compared to previous administrations. Congress has issued more than 100 subpoenas related to executive branch operations since January 2025.
Court rulings on executive privilege have historically balanced presidential autonomy against congressional oversight needs, with outcomes varying based on specific circumstances and the nature of information sought.
The Bottom Line
This DOJ opinion represents a significant expansion of executive privilege doctrine. Congressional Democrats are likely to challenge this interpretation in court, setting up potential Supreme Court precedent on the scope of presidential communications that can be shielded from legislative scrutiny. Watch for congressional responses and any legal challenges filed by oversight committees seeking documents or testimony from private individuals who have communicated with the president.