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Just one day after Todd Blanche was sworn in as attorney general, the Department of Justice (DOJ) issued a new memorandum expanding what constitutes “executive privilege,” extending the presidential protection to conversations he has with private citizens.
While not signed by Blanche personally, many legal experts view the new opinion as indicating what types of arguments the Trump administration (including the new attorney general) may employ to refuse subpoena orders from Congress should Democrats win control of one or both houses of the national legislature in this year’s midterms.
Executive privilege is a legal doctrine used in the past by presidents from both major political parties that “defines the authority of the President to withhold documents or information in his possession or in the possession of the Executive Branch from the Legislative or Judicial Branch of the government.” The Supreme Court has upheld the doctrine at various times in U.S. history, but has also ruled that it is not absolute in certain circumstances.
The DOJ slip opinion issued on Monday was signed by T. Elliot Gaiser, assistant attorney general in the Office of Legal Counsel. The opinion is not legally binding, but provides insight into how the department will handle inquiries into President Donald Trump’s conversations with non-executive branch figures in the future.
“As a general matter, executive privilege can apply to presidential communications with private advisers,” the opinion states.
Executive privilege has traditionally only extended to communications between presidents and staffers within their branch of government. This new opinion extends that to cover conversations with individuals outside the executive branch, including private, nongovernmental people.
The opinion does not say that all presidential communications of this nature are privileged — indeed, it lays out that conversations between the president and private advisers are only protected “so long as they relate to official presidential decisionmaking, involve or reflect communications with the President or his direct advisers, and are confidential.”
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But those exceptions are vague, and allow the administration to determine for itself whether a communication falls into such categories.
The memo also provides a broad definition of what constitutes a “private” adviser. Government employees who are not within the executive branch are included, for example, as are “members of the public” and “state officials.” Under this definition, a president’s conversation with a member of Congress or their staffers could feasibly fall into executive privilege status.
Despite Blanche’s name not being attached to the opinion, some observers have suggested he could have been part of its compilation, given that he was acting attorney general while it was likely being crafted. The document’s delay — being published the day after Blanche was sworn in — may also suggest that the administration didn’t want it being made public until his Senate confirmation was assured.
“Oh, look. Blanche gets confirmed. Trump gets an entirely new immunity,” Amanda Carpenter, writer at Protect Democracy, wrote in a post on X.
Sen. Chuck Schumer (D-New York) reacted to news of the expansion of executive privilege as proof that the Trump administration was worried about a Democratic Congress holding him and others to account.
“Donald Trump is scared,” Schumer wrote in a Bluesky post. “He knows accountability is coming. He’s using his newly installed Attorney General/personal lawyer, Todd Blanche, to cover up his communications with private advisers and special interest cronies.”
Other legal analysts agreed.
“There are several reasons why the Trump administration would literally attempt to create privilege doctrine out of thin air, and the impending power shift in November as Democrats attempt to take control of both the US House and Senate is first among them,” attorney and legal analyst Amee Vanderpool said, adding, “This opinion significantly raises the stakes surrounding both the assertion of executive privilege and decisions regarding compliance with congressional subpoenas.”
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