A memo from the Justice Department, published this week, indicates that President Donald Trump's private advisers may invoke executive privilege when required to provide their communications. This interpretation could significantly broaden the protections established by the Supreme Court in previous rulings. While executive privilege is not explicitly stated in the Constitution, the Supreme Court has determined that the separation of powers allows the president to maintain confidentiality over certain communications, complicating Congress and the courts' ability to issue subpoenas for specific information.
Assistant Attorney General T. Elliot Gaiser stated in the memo that executive privilege can apply to communications between the president and private advisers, provided these discussions pertain to official presidential decision-making and are confidential. The memo expands the definition of private advisers to include individuals outside the executive branch, including members of the public and officials from other government branches.
The Supreme Court's ruling in United States v. Nixon established that executive privilege is not absolute and does not apply in criminal cases. Historically, this privilege has been limited to the president and immediate White House advisers. This recent memo marks the first instance where the Justice Department has extended this protection to individuals outside the White House, which may lead to legal challenges regarding the validity of this expanded definition.
Trump has previously attempted to assert executive privilege to avoid congressional scrutiny and legal proceedings, including efforts to block the publication of Special Counsel Robert Mueller's report on Russian interference in the 2016 election and to prevent the release of information related to the January 6, 2021, Capitol attack. A D.C. federal appeals court recently upheld the conviction of Peter Navarro, a former adviser to Trump, who refused to testify before Congress, citing executive privilege. Trump also sought to invoke this privilege during the FBI's search of his Mar-a-Lago resort in 2022 for classified documents.