DOJ Opinion Would Shield Trump's Outside Advisers From Inquiries

President Trump's outside advisers — people who are not employed by the federal government — could be protected from future congressional and legal investigations under a new opinion from the Justice Department's Office of Legal Counsel.

In a 21-page opinion published Monday evening, the office told the White House that the president may extend executive privilege, the right to keep communications within the executive branch confidential, to advisers who do not work for the White House but who give him direct advice.

The opinion says the privilege can apply to private advisers if the communications "relate to official presidential decisionmaking," are confidential, and involve conversations between the president and his direct team of advisers.

"At bottom, the purpose of executive privilege is to protect the government's decisionmaking processes," the opinion said. It was signed by Assistant Attorney General T. Elliot Gaiser, who leads the Office of Legal Counsel.

"The need for presidential confidentiality applies to communications with private advisers just as it does with government officials," the opinion continued. "A President might determine that a private adviser has unique insight or experience, and that full knowledge about a contemplated decision cannot be obtained through consultation with only government employees."

The opinion is not binding. It arrives months before a contentious midterm election that could hand Democrats one or both chambers of Congress, a result that could bring a wave of investigations and expand the number of people potentially shielded from testimony.

Executive privilege is typically asserted over conversations with executive branch staff, such as White House lawyers. The new step could cover Trump's outside legal counsel and other advisers.

It is not the first OLC opinion from Trump's Justice Department to break with historical precedent. In April, Gaiser wrote that the post-Watergate federal law requiring presidents to preserve certain records and turn them over to the National Archives is unconstitutional and that Trump need not comply. Weeks later, a federal judge in Washington, D.C., ordered White House staff and Trump's top advisers to comply with the law after a government oversight group and the American Historical Association sued to invalidate the opinion.

The new opinion could also shield outside adviser and lawyer Boris Epshteyn, recently subpoenaed by the American Bar Association in a lawsuit over the White House's alleged "intimidation policy" toward major law firms. The ABA is seeking Epshteyn's communications with the White House; the Justice Department has moved to quash the subpoena, arguing he "provided the President with privileged and confidential advice in connection with the Executive Orders at issue."