Legal Scholar: New DOJ Memo Lets Private Advisers Dodge Subpoenas

A recent Office of Legal Counsel (OLC) memo on executive privilege argues that private advisers to a president—not just government officials—can refuse to comply with subpoenas by invoking the president's executive privilege, according to a Guardian commentary by legal scholar Claire Finkelstein.

Finkelstein writes that if courts accept this interpretation, it would become substantially harder to compel witnesses to testify before Congress or in court proceedings about possible presidential wrongdoing.

She points to the 2019 case of former White House counsel Don McGahn, who refused to testify before the House Judiciary Committee during special counsel Robert Mueller's investigation into President Trump. The Trump White House invoked a form of executive privilege called "testimonial immunity" to block McGahn's testimony—even though Mueller was investigating whether Trump obstructed justice by pressuring McGahn to fire Mueller himself.

Then-federal judge Ketanji Brown Jackson rejected the privilege claim and ordered McGahn to testify. After appeals and reversals, the parties settled, allowing McGahn to testify behind closed doors—too late, Finkelstein writes, for Congress's investigation to benefit fully.

The commentary notes that other presidents, including Bill Clinton and Richard Nixon, have invoked privilege or immunity claims that courts ultimately rejected. Nixon was ordered by the Supreme Court to turn over White House tapes despite asserting executive privilege. Even Thomas Jefferson tried to invoke a form of the privilege in 1807 when subpoenaed during Aaron Burr's trial, but Chief Justice John Marshall said there was "no exception whatsoever" to an accused's right to seek exculpatory evidence.

Finkelstein argues the new OLC memo misrepresents this history, including mischaracterizing the Supreme Court's ruling in United States v. Nixon, which she says "vehemently rejected" the president's privilege claim rather than endorsing it as the memo suggests.

She writes that commentators believe the memo's timing may be tied to the administration preparing for a possible change in control of Congress, anticipating a wave of investigations. Finkelstein calls the OLC's reasoning an example of "outcome-oriented analysis" and argues courts should give such opinions no weight in future cases.