DOJ expands statute shielding president's communications from oversight

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(The Center Square) – The U.S. Department of Justice has broadened the interpretation of “executive privilege,” a statute that shields certain sensitive presidential communications from public, judicial or congressional oversight.

In a new authoritative memo, the DOJ’s Office of Legal Counsel expanded the scope of the term to include executive officials’ correspondences with “private advisers,” which means “anyone the President consults outside the Executive Branch.”

“The need for presidential confidentiality applies to communications with private advisers just as it does with government officials,” the Office concluded. “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.”

It clarified, however, that not everything the president tells a private individual is privileged.

To enjoy executive privilege, the communications must “relate to official presidential decisionmaking, involve or reflect communications with the President or his direct advisers, and are confidential.”

Some government watchdog groups, however, argue that such a broad expansion of privilege undermines institutional transparency at a time when public trust in government is at record lows, according to polling data.

Scott Amey, General Counsel for the Project On Government Oversight, believes the move is “an effort to conceal information for a decade or more.”

“This administration has become the least transparent administration in history,” Amey told The Center Square, referencing staffing cuts at internal agency watchdogs and the scrubbing of information from government websites.

“While previous presidents have sought the advice of government outsiders, this move and the timing are to gain cover if Congress flips and it conducts oversight hearings about the activities and decisions that have been made in the past two years.”

While the memo is not a judicial decision and therefore not binding in courts, it is binding within the executive branch. It is currently unclear how the change will impact future investigations into both current and future presidential administrations

“We'll likely see many challenges related to who is an advisor, and the courts will have to decide if certain communications are truly confidential and related to presidential decision making, which hopefully will exclude conversations about fancy jets, crypto deals, and funneling money to family businesses and family members,” Amey said.

Democratic lawmakers have vowed to immediately launch investigations into those and other controversial activities within the second Trump administration if they regain control of Congress.

“The Office of Legal Counsel used to have sufficient independence from the president to give sound legal advice to the executive branch,” Sen. Adam Schiff, D-Calif., posted on social media Tuesday. “This latest opinion should be seen as a partisan measure to insulate the president and his corrupt activities from Congressional subpoenas when the majority flips.”