The Department of Justice’s Office of Legal Counsel (“OLC”) has issued a new legal opinion that may offer the administration new tools to withhold from disclosure the President’s communications with certain private parties. In an opinion published this week, OLC concluded that the presidential communications privilege shields from disclosure certain communications between the President and what OLC described as his “private advisers,” who could be “anyone . . . outside the Executive Branch,” including “members of the public, state officials, or employees of other branches of the federal government.”
In a moment when Democratic Members of Congress are preparing for sweeping inquiries of the administration should they win control of the House or Senate in the upcoming midterm elections, the practical implications of OLC’s analysis for future oversight disputes appear to be very significant. Most immediately, the opinion opens another front in the long-running institutional struggle between the political branches over congressional access to executive branch information, with Democratic congressional leaders already signaling their intention to forcefully contest any forthcoming privilege claims. At the same time, however, the opinion seems likely to extend those disputes to communications between the administration and companies, individuals, and entities outside the government that may themselves become subjects of congressional scrutiny.
Continue Reading OLC Opinion Would Extend Executive Privilege to Include Private Advisers, Inviting Future Disputes with Congress and New Considerations for Private Parties