The Trump administration’s latest assertions about executive privilege — that it protects the confidentiality of a president’s communication with private advisers who aren’t part of the government — are like too much else in this White House: politically unprecedented, legally wrong and morally dubious.
From a legal standpoint, the point of executive privilege is to protect communications that occur within the government, between the president and other public officials. Politically speaking, this is a naked attempt to protect the president from congressional investigation of potentially corrupt deals with his cronies, any of whom could be called “advisers” to avoid subpoena.
If President Donald Trump invokes this executive privilege in future fights with Congress, as seems likely, the legislative branch cannot fold. It must insist on its rights, bring the issue to court, and force the Supreme Court to reject the claim.
The Trump administration’s claims come in the form of a new memo by the assistant attorney general in charge of the Office of Legal Counsel, known as OLC. Historically, OLC has tended to adopt a maximalist position on presidential power. At the same time, the office has traditionally worked to maintain legitimacy by sticking to its independent understanding of the scope of presidential authority. That is supposed to mean not knuckling under to White House pressure except in rare (and infamous) cases, such as the so-called torture memos written and subsequently withdrawn by OLC lawyers under President George W. Bush.
As this memo demonstrates, Trump’s OLC has no qualms about giving the president exactly what he wants.
But the doctrine of executive privilege has never been extended to conversations between the president and people who were not part of the government. The memo claims support from a 2007 OLC memo signed by then-acting Attorney General Paul Clement. That memo suggests that executive privilege could extend to government officials outside the executive branch, which is a debatable point that the courts have not addressed.
At any rate, that memo was specifically referring to conversations between the president and members of the Senate who would play a role in confirming U.S. attorneys. That comes nowhere near the claim that the president should just be able to apply the privilege to conversations with private citizens.
Nor does the Trump memo have any convincing arguments why it should. It says that some experts are not in the government and the president should be able to get their unvarnished opinions. But a modern government should include experts capable of advising the president on every important topic. If the best experts are on the outside and the president wants their confidential advice, he can always bring them in, the way he brought in various Department of Government Efficiency advisers from the private sector at the beginning of his second term. Once they are official White House employees, their communications with the president would be privileged.
One of the most shocking parts of the memo is its assertion that private advisers without guaranteed confidentiality might be constrained in what they would say to the president because of “concern about appearances.” As OLC seems not to realize, that concern nicely captures the madness of this assertion of executive privilege: It is essentially saying that the president and his cronies should be able to make all kinds of corrupt deals or bargains, whether illegal or just immoral, without worrying about them being disclosed.
Put another way: When people who don’t work for the government talk to the president, it is entirely appropriate — desirable, even — for them to be concerned about appearances.
More than any other administration in recent history, Trump operates on the basis of personalized relationships. He doesn’t just call executives of major companies to get advice. He calls to bully them into doing what he wants. No doubt he also receives cal
