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. 

With fewer than 180 days until the midterm elections, Democratic Members of Congress are laying the groundwork for future congressional investigations in the event the party regains control of one or both chambers next year. Even as Democratic Members prepare for the possibility of winning the majority, developments such as…

With the midterm elections rapidly approaching, Democratic lawmakers in both the House and Senate have begun to return to an increasingly familiar tactic of the minority: firing off a flurry of document preservation letters that are a harbinger for the subpoenas to come.  These early letters signal that key Democrats intend to hold potential investigative targets accountable if they regain power, and that they will not look fondly on parties that dismiss their requests.  By urging federal agencies and private entities to secure records in advance, Democratic Ranking Members are making clear that they won’t wait idly to ensure relevant evidence is preserved.