A Justice Department memo published this week says President Donald Trump’s private advisers may claim executive privilege when asked to hand over their communications, a move that would greatly expand the historical protections upheld by the Supreme Court in multiple rulings.
Executive privilege is not explicitly mentioned in the Constitution, but the high court has held that the U.S. government’s separation of powers permits the president to keep certain correspondence confidential — making it more difficult for Congress and the courts to subpoena certain information.
“Executive privilege can apply to presidential communications with private advisers so long as the communications relate to official presidential decisionmaking, involve or reflect communications with the President or his direct advisers, and are confidential,” Assistant Attorney General T. Elliot Gaiser wrote in a memo opinion published Monday.
The memo broadly defines who qualifies as a private adviser to include anyone outside of the executive branch, “whether they be members of the public, state officials, or employees of other branches of the federal government.”
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The Supreme Court defined the protection in United States v. Nixon, when President Richard Nixon tried to claim the shield over secret tapes in the aftermath of the Watergate scandal. The justices ruled in 1974 that executive privilege is not absolute and does not apply in criminal cases, and the protection has historically applied only to the president and immediate White House advisers.
This is the first time the Justice Department has explicitly expanded the protection to individuals outside the White House, including private citizens. The policy is likely to prompt a legal challenge, and it remains unclear whether the courts will allow the expansion of the decades-old definition of the protection.
Trump has attempted to exert executive privilege several times since his first term in office to shield himself from congressional scrutiny and court proceedings.
In 2019, the president attempted to use the protections while seeking to stop publication of Special Counsel Robert Mueller’s full, unredacted report into Russian interference in the 2016 U.S. presidential election.
Trump has also made several attempts to use executive privilege to block the release of information related to the Jan. 6, 2021, attack on the U.S. Capitol. Last month, a D.C. federal appeals court unanimously upheld the criminal conviction of Peter Navarro, one of Trump’s top trade advisers, after he refused to testify in front of Congress and provide documents in connection to a Jan. 6 probe. Navarro had attempted to appeal his conviction by citing the protections of executive privilege.
When the FBI searched Trump’s Mar-a-Lago resort in 2022 to seize classified documents Trump possessed while he was not a sitting president, Trump also attempted to exert executive privilege protection.
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