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. 

Understanding OLC’s Analysis

On its face, the new opinion addresses a narrow question: whether the presidential communications privilege, a component of executive privilege, applies to the President’s communications with private (i.e., non-governmental) advisers.  As to that question, OLC focused on the well-recognized elements of the presidential communications privilege, specifically whether a communication (1) relates to official presidential decision-making, (2) involves or reflects communications with the President or his “direct advisers,” and (3) is confidential.

Grounding its analysis in the Supreme Court’s foundational decision in United States v. Nixon, 418 U.S. 683 (1974), OLC reasoned that the “need for confidentiality to encourage the provision of candid advice in aid of the President’s Article II functions” would be undermined if the privilege did not reach communications with persons outside the Executive Branch.  In support, the opinion traces a long history of presidents relying on informal outside advisers—from President Jackson’s “Kitchen Cabinet” of personal associates and family members, to President Franklin Roosevelt’s “Brain Trust” of academic advisers, to President Lyndon Johnson’s reliance on “old and trusted friends from outside the Executive Branch” during the Vietnam War—and draws on earlier OLC and D.C. Circuit decisions addressing the scope of the privilege.  The opinion also traces the long history of presidents resisting outside access to confidential communications, albeit without reference to prior instances in which presidents asserted that communications with nongovernmental advisers should be protected.

Though by its terms OLC’s analysis is limited to the narrow question of whether the presidential communications privilege applies to communications among the President and his closest advisers, the opinion repeatedly signals that its reasoning could apply more broadly.  OLC noted, for example, that “[o]ther components of executive privilege potentially could apply to presidential communications with private advisers as well.”  And the opinion makes clear that the privilege is not limited to communications in which the President personally participates—it extends to materials “solicited and received” by the President’s direct advisers from outside parties.  In a footnote, OLC expressly reserved the further question of whether the privilege would also extend to other White House officials’ communications with private persons—leaving the door open for an even broader interpretation that would encompass a wider array of public-private communications.

Oversight Implications

Prospective Democratic committee chairs have already begun laying the groundwork for investigations next year—potentially including subpoenas—by dispatching a flurry of document preservation letters and voluntary document and information requests to both the executive branch and private sector companies.  Frequently, these requests have sought communications between the executive branch and the private sector, with parallel requests sent to both sides of the communication.  Due in no small part to principles like executive privilege, Congress has historically had more success in obtaining information from the private sector than the coequal executive branch.  However, this new opinion may present an opportunity for the executive branch to extend this power dynamic into certain private sector communications, as well.  Doing so could blunt Congress’s frequent strategy of targeting private parties for information that the executive branch refuses to provide.

More generally, the OLC opinion defined “private advisers” broadly to include virtually anyone the President consults outside the executive branch, including private citizens, state officials, and employees of other branches of government, presumably Members of Congress and officials of the Judiciary.  And rather than focusing on the employment status of an adviser, the opinion repeatedly emphasizes function: the privilege turns on whether a communication is part of official presidential decision-making and involves the President or his direct advisers, “not on the identity of the other participant.”  That reasoning could have consequences well beyond the specific question presented to OLC.

Congressional oversight frequently focuses on communications between executive branch officials and outside actors—contractors, grantees, industry representatives, advocacy groups, consultants, and state officials.  Under OLC’s reasoning, the executive branch may now argue that it has a stronger basis to prevent the disclosure of such communications when they were solicited to inform presidential decision-making and were treated as confidential.  Although historically OLC has considered the executive privilege to extend to certain individuals outside the White House (e.g., former senior officials), this could represent a further expansion of the executive privilege with meaningful practical implications that could complicate congressional investigations focused on the administration’s relationships with the private sector on any number of topics.

Unsettled Legal Questions

The OLC opinion notwithstanding, recipients of congressional requests and subpoenas would do well to remember that executive privilege is generally an unsettled area of law with many unresolved legal questions relating to the doctrine’s scope and applicability.  

The Supreme Court has never squarely resolved the scope of executive privilege in response to a congressional subpoena—a point that OLC has acknowledged.  The opinion draws on OLC’s own prior opinions and on dicta from judicial decisions—including In re Sealed Case, 121 F.3d 729 (D.C. Cir. 1997), involving an independent counsel subpoena for White House materials in the Clinton Administration, and Association of American Physicians & Surgeons, Inc. v. Clinton, 997 F.2d 898 (D.C. Cir. 1993), which did not deal with executive privilege at all and instead involved application of the Federal Advisory Committee Act—but no court has squarely held that the presidential communications component of executive privilege extends to communications with private advisers in the manner the opinion describes.

Further, as noted in the opinion, under existing precedent, executive privilege in the congressional context can be overcome when the information sought is “demonstrably critical to the responsible fulfillment of [Congress’s] functions.”  Senate Select Comm. on Presidential Campaign Activities v. Nixon, 498 F.2d 725, 731 (D.C. Cir. 1974) (en banc).  How courts would apply that balancing test to communications with private advisers—who lack the institutional relationship to the presidency that has traditionally underpinned privilege claims—is uncertain, particularly where the private individuals in question have their own financial or business interests in the policy decisions under discussion.

Indeed, federal judges have shown skepticism toward expansive assertions of executive privilege, including executive branch privileges arising from OLC opinions.  For example, in Committee on the Judiciary v. McGahn, 415 F. Supp. 3d 148, 205 (D.D.C. 2019), then-Judge Ketanji Brown Jackson wrote that OLC’s claimed doctrine of absolute testimonial immunity for senior presidential aides was “seemingly formed out of nothing” and had “no foundation in law.”  More recently, following President Biden’s decision to decline to assert executive privilege over former adviser Steve Bannon’s communications, Bannon was convicted of criminal contempt of Congress and served a four-month sentence for refusing to comply with a congressional subpoena.  Although the current administration has since moved to vacate the conviction, the case underscores the considerable risk of defying congressional demands based on untested privilege claims.  

Looking Ahead

For Democratic Members of Congress, the new OLC opinion could complicate their plans to investigate the outside interests that are alleged to have influenced executive branch decision-making and the companies, individuals, and other outside entities that have perceived ties to the administration, the President, and the President’s family.  For the executive branch, the opinion provides a potential new, but untested, framework for resisting disclosure of communications involving outside parties.  And for anyone who regularly interacts with the White House or senior administration officials, the opinion will add further complexity to navigate when responding to an increasingly common variety of congressional inquiries directed to private parties. 

As the midterm elections approach and the prospect of a new Democratic majority draws closer, the opinion may prove to be an opening salvo in what could become a defining legal battle of the next Congress.