Justice Department extended executive privilege to shield Trump's private advisers from congressional oversight

On the evening of August 10, 2026, the Justice Department's Office of Legal Counsel issued a 21-page opinion concluding that President Trump can extend executive-privilege protection to private advisers who are not federal employees, provided their communications relate to official presidential decisionmaking and remain confidential. Signed by Assistant Attorney General T. Elliot Gaiser, who leads OLC, the opinion states that "the need for presidential confidentiality applies to communications with private advisers just as it does with government officials," and argues that restricting privilege to intragovernmental communications would "impair the President's Article II functions."

The opinion departs from the traditional scope of executive privilege, which has applied to communications among government employees, and a University of Kentucky law professor who served in the Obama-era OLC told CNN the question of whether privilege covers non-government advisers "has never been tested directly in court." It arrives months before the November 2026 midterm elections, which could put Congress's subpoena power in Democratic hands and prompt new investigations of the administration.

The opinion's most concrete application is already before a court: the American Bar Association has subpoenaed Trump adviser and attorney Boris Epshteyn, who does not work in the administration, seeking his communications with the White House in a lawsuit over the administration's pressure campaign against law firms that opposed Trump's agenda. The Justice Department has moved to quash that subpoena, arguing Epshteyn "provided the President with privileged and confidential advice" on the executive orders targeting those firms. It is not the first Gaiser-signed OLC opinion to break with precedent to shield the administration from accountability: an April 2026 opinion declared the Presidential Records Act unconstitutional, a position a federal judge later rejected by ordering White House staff to comply with the law.