The Justice Department issued a sweeping legal memo declaring that executive privilege protects President Donald Trump’s communications with advisers outside his administration, a move that could block future congressional investigations if Democrats win the November elections.

Unprecedented Scope of Protection

The Department of Justice Office of Legal Counsel released the opinion Monday evening, formalizing an aggressive stance previous administrations suggested but never publicly detailed. The memo states that limiting executive privilege to government employees would prevent the President from consulting important sources necessary for effectively discharging his constitutional responsibilities. According to the DOJ, such restrictions would impair presidential functions under Article II and ultimately harm the public interest.

Jonathan Shaub, a University of Kentucky law professor who served in the Obama administration’s Office of Legal Counsel, confirmed the position aligns with past internal views but noted officials understood how extreme it appears publicly. While OLC memos lack the weight of court rulings, they control how the executive branch interprets the law unless a court orders otherwise. The question of privilege protecting presidential communications with private advisers has never been directly tested in court.

Boris Epshteyn and the ABA Lawsuit

The memo’s immediate relevance centers on an ongoing American Bar Association lawsuit challenging Trump’s crackdown on law firms opposing his agenda. The Justice Department invoked executive privilege to block subpoenas targeting Boris Epshteyn, who does not hold an administration position but played an instrumental role in White House deals with law firms seeking to avoid executive orders. DOJ described Epshteyn as Trump’s personal attorney while arguing that conversations he may or may not have had with the President or close advisers remain privileged.

The administration further contends that revealing whom the President consulted or the content of those consultations could chill future deliberations, undermining presidential access to quality advice and the ability to carry out constitutional duties without interference. This argument extends privilege protections far beyond traditional government communications.

Congressional Democrats Face Higher Barriers

If Democrats regain House control after November elections, they could encounter an even more resistant executive branch than during their 2018 majority. The Trump administration would be emboldened by a 6-3 conservative Supreme Court majority that has expressed broad views on presidential powers and immunity. Previous Democratic investigations into Trump’s first term prompted novel legal disputes over accessing information about his personal conduct and government operations.

Trump routinely consults a network of allies outside the White House, including members of Congress, business leaders, and longtime friends. This practice differs from past presidents who rarely depended on individuals beyond the executive branch for private conversations shaping public policy. A DOJ official stated the opinion reaffirms the office’s longstanding position dating back to at least 2007, though critics argue the comprehensive public formalization represents a significant expansion of claimed executive authority over congressional oversight.