DOJ opinion extends executive privilege to president’s communications with private advisers
By Klaus Berger ·
The Justice Department’s recent opinion on executive privilege is not a legal clarification; it is a structural hazard, dressed up in the language of constitutional necessity.
When Secrecy Becomes an Unaccountable Right
The Justice Department’s recent opinion on executive privilege is not a legal clarification; it is a structural hazard, dressed up in the language of constitutional necessity. By arguing that presidential communications with private advisers—be they friends, consultants, or lawyers like Boris Epshteyn—can be shielded by executive privilege, the DOJ effectively rewrites Article II to mean "whatever helps the current administration maintain its informational advantage." The memo, published on August 11, 2026, and reported extensively by edition.cnn.com and cbsnews.com, asserts that such protection is necessary because restricting it would “impair the President’s Article II functions” and ultimately "harm the public itself.”
This reasoning—that accountability must be sacrificed at the altar of operational secrecy—is intellectually dishonest. The concept, as detailed on justice.gov, hinges on three criteria: that communications relate to official decisionmaking, involve direct advisers, and are confidential. While the DOJ cites historical precedents, from John Jay’s Federalist No. 64 to the "Kitchen Cabinet" of Andrew Jackson, it ignores the fundamental principle of a functional republic: checks and balances. The rulebook is clear; privilege is not an absolute shield against legitimate inquiry simply because the President finds the process inconvenient or embarrassing.
The Illusion of Unfettered Counsel
The core danger here is the elevation of process over principle. The DOJ’s argument, as quoted in the OLC memo, states that "the unrestrained ability to gather information is essential to the President’s executive function." This suggests that the highest constitutional value is merely the smooth flow of unscrutinized advice.
This logic fails because it treats presidential decision-making like a closed system—a private boardroom where only the occupant holds sway. It ignores the very nature of governance, which requires public legitimacy and institutional transparency to function. The historical need for candid advice, as articulated in Nixon, is real; but that necessity does not grant immunity from judicial or legislative scrutiny simply because the source of counsel is non-governmental.
The DOJ’s insistence on this broad scope—that the privilege applies even when advisers are outside the Executive Branch—is a dangerous extension of power. It allows an executive to functionally declare certain conversations off the record forever, regardless of whether those conversations involved matters of national security or merely questionable political maneuvering. The result is not better governance; it is institutional opacity designed for impunity.
A Dangerous Echo of Institutional Secrecy
The mechanism at play here—the claim that operational secrecy trumps external oversight—is a pattern with profound historical implications. We must look to the Church Committee Hearings. In 1975, Congress investigated abuses by intelligence agencies like the CIA and NSA. The tension was precisely between institutional claims of necessary operational secrecy and the legislative demand for accountability regarding government overreach.
The shared mechanism is undeniable: an entrenched branch claiming that its constitutional function requires it to operate outside the purview of law or public knowledge. In both instances, the argument deployed by power centers is that oversight will inevitably compromise effectiveness. This DOJ opinion simply updates the playbook, swapping intelligence files for private phone calls. It provides a modern mechanism to shield actions—and advisers—from the very scrutiny required to maintain democratic competence.
The rule of law does not bend because a powerful individual finds it inconvenient. The government’s strength has always resided in its boring competence and adherence to established limits, not in the ability to claim constitutional exemptions for private counsel. This opinion is nothing more than an attempt to build a permanent moat around the White House, ensuring that when the political winds shift—and they inevitably do—the historical record remains conveniently redacted.