On Monday afternoon, Todd Blanche officially was sworn in as the 88th Attorney General of the United States, leading journalists and other observers of the Justice Department to ask, “What will he do differently now that he’s been confirmed?”
That same day, an answer came in the form of a new, 21-page opinion issued by the Department’s Office of Legal Counsel, the unit of DOJ that, by its own description, “provides legal advice to the President and all executive branch agencies,” including in the form of written opinions in response to requests from the White House Counsel, various agencies, and other units within DOJ.
The opinion concerns the bounds of the president’s “executive privilege,” or ability to protect his communications from disclosure to Congress, courts, or even the public. In contrast to past DOJ interpretations, OLC is now taking the position that executive privilege can encompass communications with “private advisers” so long as three things are true: The communications are related to presidential decisions, involve the president or his “direct advisers,” and are confidential.
That represents a departure not only from prior presidential administrations, but also from Trump’s own willingness to test the bounds of executive privilege over his communications with people outside government.
After Steve Bannon refused to testify or produce documents in response to a subpoena from the House Select Committee on January 6th, Bannon — who was a private citizen at all times relevant to the Jan. 6 inquiry — asserted his communications with Trump were covered by executive privilege, that Trump would be asserting that privilege, and that until the scope of that privilege was resolved through litigation, Bannon would neither testify nor produce documents.
But Trump’s lawyer later clarified in an October 2021 email that Trump did not believe Bannon was immune from testifying. And ultimately, neither Trump, nor then-President Joe Biden, nor any other governmental employee or body asserted the privilege as Bannon had desired.
Bannon was indicted and convicted on contempt of Congress charges before the DOJ, aided by the Supreme Court, vacated his conviction earlier this year.
But that doesn’t explain why the Justice Department is changing course now. The new OLC memo comes in the middle of an ongoing litigation battle, and one specifically over communications between Trump, his senior White House aides, and his longtime consigliere, Boris Epshteyn.
In June 2025, the American Bar Association sued the Executive Office of the President – aka the White House – the DOJ, and multiple other agencies and cabinet secretaries for implementing a law firm intimidation policy to “coerce lawyers and law firms to abandon clients, causes, and policy positions the President does not like.” According to the ABA, the administration’s conduct toward law firms violates the firms’ First Amendment rights as well as separation of powers principles.
The ABA took issue with two Trump-led actions toward law firms: Trump’s “materially identical executive orders designed to severely damage particular law firms and intimidate other firms and lawyers” and the “deals” or “settlements” it cut with other law firms “in order to avoid such Orders or have them rescinded.”
Following a series of public reports this spring about Epshteyn’s leading role in negotiating the settlements, the ABA sought his deposition and documents, including his communications with both the firms and White House staff about the executive orders and the settlements. But last month, the DOJ moved to quash – or invalidate – the subpoenas to Epshteyn.
The DOJ argues that if Epshteyn provided Trump with advice concerning the law firm executive orders, that advice was “privileged and confidential,” both as a matter of executive privilege and attorney-client privilege. As a result, it contends, the ABA should not be allowed to obtain that information, either from the White House or from Epshteyn himself.
The DOJ also refuses to confirm whether Trump did, in fact, receive advice from Epshteyn with respect to how he decided to deal with the law firms. Instead, it asserts that executive privilege extends to the very identity of anyone from whom a president receives confidential advice, whether or not that person is an executive branch employee or a lawyer.
Late last week, the ABA and DOJ jointly proposed a schedule for briefing on DOJ’s motion; they agreed — and Judge Amir Ali ordered — that the ABA would have until Tuesday, Aug. 11, to oppose the DOJ’s motion.
But on Monday, the OLC concluded that the presidential communications privilege — a subset of executive privilege — covers a president’s communications with private advisers, no matter the subject. According to the OLC, this is nothing new. Presidents, from Jackson to FDR to Johnson, have long relied on conversations with people outside government — including academics, industry leaders, and union heads — to help guide policy decisions or even matters of national security.
The opinion reasons that if executive privilege only covered a president’s communications with people inside the executive branch, he could not consult any number of “important sources” in discharging his official responsibilities. And that, OLC says, would not only impair a president’s ability to carry out his constitutional duties, but would harm all of us. It also observes that unlike executive branch employees, who are often publicly associated with a president, outside advisers – who may have “little to no affiliations” with him – might be more reluctant to furnish advice, especially on “controversial or unpopular policies” if their communications were not insulated from public disclosure or they had to fear other, unspecified “potential ramifications.”
But perhaps most troubling is how broadly the opinion defines two key concepts. First, under the OLC opinion, a “private adviser” includes “anyone the President consults outside the Executive Branch, whether they be members of the public, state officials, or employees of other branches of the federal government.”
Second, OLC acknowledges that executive privilege applies only to a president’s official, and not personal, decisions. But in a footnote, it attempts to muddy the line between what counts as official and personal. Because the president’s powers are so broad and are not limited to what is defined by the constitution and federal statutes, says OLC, what seems like personal conduct could, in fact, fall within the bounds of official actions.
What’s left is a new DOJ policy that potentially insulates nearly any conversation between private citizens and the president — and even communications between private citizens and those who directly advise the president from within the White Houses, as long as those communications come from — or are requested by — the president or his staff.
The opinion could anticipate a slew of investigations of Trump and his allies if either or both houses of Congress change hands in November. Perhaps that is one reason the opinion was published Monday.
But given developments in the ABA case – and the DOJ’s pending motion to prevent that organization from enforcing its subpoenas to Epshteyn – the motivation for OLC’s opinion might be less a future, curious Congress than people who’ve been whispering in Trump’s ear from outside the beltway, Epshteyn chief among them.
And it appears that’s the read by the ABA itself.
In its Tuesday night brief opposing the DOJ’s motion to quash its subpoenas to Epshteyn, the ABA not only disputes DOJ’s depiction of the law, but trolls the OLC memo itself as “self-serving both in timing and content.”
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