Trump DOJ executive privilege memo risks blocking oversight
The Trump DOJ executive privilege stance in a new Office of Legal Counsel memo says private presidential advisers can refuse subpoenas by asserting the president's privilege. Legal scholar Claire Finkelstein warns that if courts accept it, presidents could more easily block witnesses in Congress and court, inviting corruption and weakening accountability.
According to Finkelstein's analysis in The Guardian, the memo maintains that private advisers can avoid a subpoena by claiming the president's executive privilege—going beyond older limits focused on senior government aides.
That shift matters for anyone tracking power, compliance, and institutional risk, including readers following Fintech & Crypto Alerts on how policy fights reshape markets and oversight.
Key Takeaways
- A recent OLC memo argues executive privilege can cover communications with private presidential advisers.
- If courts accept it, compelling witnesses before Congress or in court about possible presidential wrongdoing could get substantially harder.
- Finkelstein says the approach goes beyond a 2019 OLC opinion used to block former White House counsel Don McGahn's testimony.
- She notes courts have often rejected broad privilege claims, citing Clinton, Nixon, and Jefferson-era precedents.
- Commentators have linked the memo's timing to a possible House or Senate shift and coming investigations.
What does the Trump DOJ executive privilege memo say?
The Office of Legal Counsel memo claims presidents may shield communications with private advisers through executive privilege. Finkelstein says that already-powerful tool would grow stronger if courts endorse the new reading.
She notes the memo goes further than a 2019 OLC opinion that treated senior aides as an "extension of the President" with absolute immunity from compelled congressional testimony. That rationale, she writes, does not fit private persons who merely consult with the president.
Why could this make presidential accountability harder?
Equipping presidents with broader power to block witnesses invites corruption by presidents and their advisers, Finkelstein argues. She points to Don McGahn's 2019 refusal to testify after a House Judiciary Committee subpoena tied to Robert Mueller's investigation.
The Trump White House asserted "testimonial immunity," backed by a 2019 OLC opinion, while Mueller was probing whether Trump obstructed justice partly by pressing McGahn to fire Mueller. Then-Judge Ketanji Brown Jackson rejected the privilege claim and ordered McGahn to testify; after appeals and a settlement, he testified behind closed doors—too late, Finkelstein says, for Congress.
Have courts usually accepted these privilege claims?
Other presidents have invoked privilege often, but courts more often than not reject such claims, she writes. Bill Clinton failed in bids to avoid Kenneth Starr's questions and a Paula Jones lawsuit deposition. Richard Nixon lost in United States v. Nixon over the White House tapes.
Finkelstein also criticizes the memo's account of Thomas Jefferson's 1807 response to an Aaron Burr trial subpoena, noting Chief Justice Marshall insisted there was "no exception whatsoever" to an accused's right to seek documents and testimony to prove innocence. She urges courts to give OLC opinions no weight when they engage outcome-oriented analysis.