Trump's Own Justice Department Issued a Memo Declaring He Can Hide His Conversations With Private, Outside Advisers — Billionaires, Fixers, Private Lawyers, Even State Officials — Under "Executive Privilege," Stretching a Doctrine the Supreme Court Already Ruled Isn't Absolute, to Wall Off His Shadow Advisers From Congress Right Before the Midterms

Executive privilege is a real and legitimate thing, within limits. A president needs to be able to get candid advice from his aides without every word being subpoenaed, so the courts have long recognized a qualified privilege over the president's confidential communications with his official advisers. The key words are "qualified" and "official." Trump's Justice Department just tried to delete both.

What the memo says

On the evening of August 11, 2026, the Justice Department's Office of Legal Counsel — the elite unit whose opinions set the executive branch's official legal positions — published a 21-page memo, signed by Assistant Attorney General T. Elliot Gaiser, reaching a conclusion no prior administration had put in writing: that executive privilege can cover the president's communications with private advisers.

And it defines "private advisers" as broadly as the language allows — essentially anyone the president consults outside the executive branch:

"...whether they be members of the public, state officials, or employees of other branches of the federal government."

Gaiser's justification: "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 need for confidentiality, he wrote, "applies to communications with private advisers just as it does with government officials."

It is the first time the Justice Department has explicitly stretched the privilege past the president and his immediate White House staff to reach private citizens.

What it breaks from

Two well-settled limits stand in the way, which is exactly why the memo is notable:

• Executive privilege is not absolute. In United States v. Nixon (1974) — the case that pried the Watergate tapes out of a president's hands — the Supreme Court held that the privilege is qualified and must yield to other interests, and does not shield evidence in a criminal case
• It has covered official advisers, not outside ones. The whole rationale is protecting the government's internal deliberations. Extending it to private citizens who hold no office severs the doctrine from its purpose and turns it into a personal secrecy shield the president can drape over anyone he talks to

The OLC memo is not binding on courts — a judge can reject it, and challengers already argue it is unlawful. But OLC opinions are how the executive branch decides what it will and won't do. In practice, this memo is the administration announcing that when Congress or a subpoena comes for the communications of Trump's outside advisers, the answer will be "executive privilege," and the fight will have to be waged case by case, in court, for years.

Who it is actually for

You do not have to guess at the purpose, because the memo has a face: Boris Epshteyn, Trump's longtime outside adviser and "fixer," who holds no government job. The American Bar Association subpoenaed him — and the new privilege would let him refuse to comply. What is it that Epshteyn might now keep hidden?

• He was the liaison to private law firms in the pressure campaign that extracted pledges of nearly $1 billion in free legal services for Trump-aligned causes — the law-firm shakedown documented elsewhere in this record
• He coordinated strategy with the lawyers who ran Trump's sham IRS lawsuit — the collusive case a federal judge voided, that laundered Trump tax immunity and tried to fund the January 6 rioters

In other words, the memo is engineered to conceal exactly the kind of conduct that most needs sunlight: an unelected private operative brokering a billion-dollar arrangement with the legal profession and steering litigation that benefits the president personally. Under the old understanding, none of that is "executive" deliberation — it is a private fixer's dealings, fair game for oversight. Under the new memo, it is privileged, and the public may never see it.

The timing tells you the motive

OLC does not issue landmark expansions of presidential secrecy at random. This one dropped months before the midterm elections, with the White House openly bracing for a wave of investigations should Democrats retake the House. Read in that light, the memo is not a legal abstraction; it is pre-positioned armor. It is the administration deciding, in advance, that when the subpoenas come for the billionaires, donors, and operatives who shaped its decisions, it will have a doctrine ready to bury the answers — one manufactured by the president's own Justice Department, for the president's benefit.

The pattern

This is the same move as everything else, ported to a new venue. Confronted with a check — here, the constitutional power of Congress and the courts to compel testimony and documents — the administration does not accept it and does not openly defy it. It has its lawyers write an opinion redefining the check out of existence. The Justice Department that asserts the president may direct prosecutions of his enemies, that defied the Epstein transparency law, that engineered the IRS immunity deal, now supplies the secrecy doctrine to keep all of it, and whatever comes next, hidden.

Government by unelected private advisers is dangerous enough when the public can at least find out who they are and what they urged. The point of this memo is to make sure it never can — to let the most consequential decisions of the presidency be shaped, in confidence, by people who answer to no one and whose counsel no oversight body may ever read. A president with nothing to hide does not need to invent a privilege to hide his private advisers. This one just had it written down.