Justice Department says Trump's outside advisers can be blocked from testifying

A new Justice Department memo says President Trump can extend executive privilege to private advisers outside of the government, a legal conclusion that expands the number of individuals who could be shielded from congressional probes as Democrats prepare investigations ahead of a possible midterm victory.

The Justice Department’s Office of Legal Counsel, in an opinion posted late Monday, declared that the president has the authority to extend executive privilege to private attorneys directly counseling him on sensitive matters.

Justice Department opinions are not legally binding, but the memo illustrates that the White House is already preparing its response to a slew of investigations should Democrats gain control of the House.

Traditionally, a president may only assert executive privilege over communications with executive branch staff. But the OLC said those outside the government are just as important to the president and must also be protected.

“At bottom, the purpose of executive privilege is to protect the government’s decision-making processes,” T. Elliot Gaiser, assistant attorney general for OLC, wrote in the opinion.

“The interests motivating the privilege are at their apex when it comes to decisions of the President. The need for ’candid, objective, and even blunt or harsh opinions’ is all the more important for the President, who is tasked with making ’the most sensitive and far-reaching decisions entrusted to any official under our constitutional system,’” he wrote. “Without a promise of confidentiality, the President’s ability to ’decide and act quickly’ on matters of unrivaled importance would be seriously hindered.”

However, the OLC said the claim is not absolute and the president could only assert executive privilege for conversations with outside advisers that are “limited communications” about the “performance of [a president’s] responsibilities’ and part of the “process of shaping policies and making decisions.”

The guidance could potentially apply to the Justice Department’s response to a lawsuit filed by the American Bar Association in which the department subpoenaed law firms in an effort to block the ABA’s request for communications between the White House and Mr. Trump’s outside lawyer, Boris Epshteyn.

The OLC memo is the latest in a series of maneuvers to shield Mr. Trump’s talks with outside advisers.

In April, the OLC determined that the White House should not have to comply with the Presidential Records Act, which requires the preservation of most White House records, including staff communications. However, a federal judge ruled that the administration must comply with the law.