DOJ’s Office of Legal Counsel Broadens Scope of Executive Privilege to Apply to Presidential Communications with Private Advisers
On August 10, 2026, the Department of Justice’s Office of Legal Counsel (OLC) issued an opinion that provides the Executive Branch with a basis for asserting privilege over a potentially broad category of communications in response to future congressional investigations. The opinion — Applicability of Executive Privilege to Presidential Communications with Private Advisers — concludes that the presidential communications component of executive privilege can protect communications between the President and private advisers who do not hold formal positions in government. It provides that executive privilege may apply to such communications so long as they (1) relate to official presidential decision-making, (2) involve or reflect communications with the President or his direct advisers, and (3) are confidential.
The opinion is significant because it establishes the first generally applicable Executive Branch standard under which the presidential communications privilege extends to private advisers. Under OLC’s approach, Congress may overcome an assertion of privilege only by demonstrating that the requested information is “demonstrably critical” to the responsible fulfillment of its functions. While the opinion binds neither Congress nor the courts, it indicates the Executive Branch’s likely posture when responding to congressional demands for testimony or records involving presidential communications with outside advisers.
The OLC Opinion’s Framework and Conclusions
The opinion, Applicability of Executive Privilege to Presidential Communications with Private Advisers, was issued in response to a general inquiry from the Counsel to the President regarding whether the presidential communications component of executive privilege permits the President to protect communications with advisers outside the Executive Branch.
In providing the President with a potential shield from requests for documents or testimony, OLC primarily grounded its conclusion in the President’s Article II authority. OLC reasoned that the President has an implied constitutional power to “seek and obtain advice from whomever the President deems necessary in order to faithfully execute the laws,” and that authority does not turn on whether the adviser is a government employee or a private citizen. OLC noted that limiting the privilege to government officials would undermine the purpose of the presidential communications privilege as contemplated by Article II, which is to preserve the confidentiality necessary for candid advice and informed presidential decision-making. According to OLC, that rationale applies regardless of whether the individual or institution providing advice to the President is affiliated with the United States government.
OLC concluded that the rationale for confidentiality may apply with even more force to the President’s private advisers. Unlike government officials, outside advisers may have no formal affiliation with the President and may face personal or professional consequences if their involvement in controversial policy discussions becomes public. As a result, private advisers may be particularly reluctant to provide candid advice without an expectation of confidentiality.
The opinion also relies on existing OLC and judicial precedent. OLC points to, among other authorities, Acting Attorney General Paul Clement’s 2007 opinion concerning the dismissal and replacement of U.S. Attorneys, the D.C. Circuit’s decisions in Association of American Physicians & Surgeons v. Clinton and In re Sealed Case, and other authorities recognizing the President’s need to obtain information and advice from sources outside the government. OLC also relies on its earlier Federal Advisory Committee Act opinion, which drew no relevant distinction between recommendations from government staff and private committees. In OLC’s view, those authorities establish that the privilege turns principally on the relationship of the communication to presidential decision-making and not simply on whether every participant is a federal employee.
Finally, the OLC opinion also points to a long history of Presidents relying on advisers outside the Executive Branch. Among other examples, OLC highlights President Andrew Jackson’s informal “Kitchen Cabinet,” President Franklin Roosevelt’s “Brain Trust,” President Grover Cleveland’s consultation with J.P. Morgan during a Treasury crisis, and President Lyndon Johnson’s reliance on trusted private friends for advice concerning Vietnam. In OLC’s view, this historical practice confirms that Presidents have long sought advice based on an individual’s expertise or judgment rather than his or her formal employment status. The opinion therefore presents its conclusion as consistent with longstanding presidential practice.
How the OLC Opinion May Change The Status Quo
What is new, then, is less the underlying proposition that the President may receive confidential advice from outsiders. Instead, the opinion represents a shift in that OLC has now, in response to a general request from the President, officially synthesized existing authority into an express, generally applicable rule for the presidential communications privilege. Earlier authorities had recognized pieces of that proposition in particular settings. For example, the D.C. Circuit had focused principally on communications within the President’s immediate advisory structure. The August opinion expressly extends that framework to private advisers. OLC’s 2007 U.S. Attorneys opinion concluded that communications with persons outside the Executive Branch could remain protected when they were confidential and related to presidential decision-making. However, the August 2026 opinion goes further by converting these authorities into a broader baseline: private status, standing alone, does not place a communication outside the privilege. In practical terms, that changes the starting point for an oversight dispute. Rather than treating an adviser’s lack of a government position as a substantial threshold objection to presidential-communications privilege, the inquiry under OLC’s framework moves directly to an analysis of function, proximity, subject matter, and confidentiality.
Continuing Limits on Executive Privilege and Open Questions for the Future
That shift is meaningful, but it should not be overstated. The opinion does not purport to overrule a prior judicial rule categorically excluding private advisers. Indeed, OLC presents its conclusion as flowing from existing precedent and historical practice. Nor does an OLC opinion bind Congress or the courts. The principal change is therefore one of Executive Branch doctrine and litigation posture. Simply put, the Administration now has a formal OLC opinion stating prospectively that the presidential communications privilege is not confined to the government payroll, rather than having to build that proposition from fact-specific precedents each time the issue arises.
OLC itself emphasizes that its conclusion has important limits. First, the privilege applies only to communications concerning the President’s official responsibilities and the process of shaping policy or making official decisions; purely personal or non-official communications are not covered. Second, the privilege is limited by proximity to the President. It protects communications involving the President or his direct advisers, including materials solicited and received by them, but does not extend to every individual who plays some remote role in developing presidential advice or the Administration’s policies. Third, the communication must have been confidential when made and must continue to be treated as confidential. Public disclosure can extinguish the privilege as to the information actually disclosed.
The phrase “direct advisers” will likely do substantial work in applying that three-pronged test. While the opinion does not answer precisely who qualifies as a direct adviser, it incorporates the D.C. Circuit’s functional concept of “operational proximity” to the President. Under In re Sealed Case, the privilege extended to the President’s immediate White House advisers and, in appropriate circumstances, members of an immediate adviser’s staff who have broad and significant responsibility for investigating and formulating advice for the President on the particular matter.
At the same time, the D.C. Circuit has cautioned against extending the privilege merely because an official occupies a senior position. In Judicial Watch v. Department of Justice, for example, the court declined to treat the Attorney General and Deputy Attorney General as sufficiently close presidential advisers for all purposes and instead focused on whether particular materials were solicited and received by the President or the Office of the President. Thus, labels such as “senior adviser,” “Cabinet official,” or “private adviser” should not themselves resolve the issue. The relevant question is the person’s actual role in the President’s decision-making process on the matter at issue.
The opinion also makes clear that the President need not personally be a sender or recipient of every privileged communication. That principle predates OLC’s August 10 opinion. In re Sealed Case held that communications made by presidential advisers while preparing advice for the President may be protected even when they are not communicated directly to him, because immediate advisers require sufficient “elbow room” to gather information and formulate recommendations. Later D.C. Circuit decisions have similarly applied the privilege to documents solicited and received by the President or his immediate advisers even where the President did not personally review every underlying communication. The August 2026 opinion expressly invokes that line of cases, stating that the privilege may cover communications authored by direct advisers and materials that they solicit and receive from others, provided the communications are sufficiently close to presidential deliberations.
There is, however, an important unresolved edge to that principle in the private-adviser context. In a footnote, OLC observes that adviser-to-adviser communications made in preparing advice for the President can be privileged even when not made directly to the President, but says that because the Counsel to the President asked specifically about the President’s own communications with private advisers, the opinion does not decide what protection applies to other White House officials’ communications with private persons. That reservation could become significant in future congressional disputes. A private adviser’s direct exchange with the President presents the clearest case under the opinion; a document solicited and received by a qualifying direct presidential adviser has substantial support in existing D.C. Circuit precedent. But communications occurring solely among private advisers, or between private persons and White House personnel farther removed from the President, may present a more contested question of whether they are sufficiently proximate to presidential decision-making. The likely resolution of such a dispute remains uncertain.
Implications for Congressional Investigations
The opinion could have significant consequences for congressional investigations. It provides the Executive Branch with a basis for asserting privilege when committees seek documents or testimony from private individuals who advised the President even where those individuals never held government positions. Where the President formally asserts the privilege in response to a congressional demand, OLC notes that D.C. Circuit precedent requires Congress to demonstrate that the requested information is “demonstrably critical to the responsible fulfillment of its functions” to overcome the assertion. That standard requires committees to show a specific need tied to a concrete legislative or oversight function rather than general relevance to an investigation.
The opinion does not make all communications between the President and private individuals privileged. Whether the privilege applies remains a fact-specific inquiry focused on the communication’s connection to official presidential decision-making, its proximity to the President or his direct advisers, and whether confidentiality has been maintained. But the opinion provides the Executive Branch with a formal OLC framework for asserting presidential communications privilege over qualifying interactions with outside advisers, including private individuals who may themselves become targets of congressional subpoenas or document requests. In that sense, the most consequential future disputes may concern not the abstract availability of privilege for a private adviser, but where courts draw the boundary around the President’s “direct advisers” and how far the privilege follows information as it moves through a mixed network of White House officials and outside advisers before reaching presidential decisionmakers.
Another open question is what sort of waiver applies to privilege. OLC’s opinion takes a narrow view of waiver stating that waiver of executive privilege “should not be lightly inferred,” “must be authorized and deliberate,” and generally extends only to the specific information actually disclosed rather than applying to undisclosed portions of the same document, other documents concerning the same subject, or the subject matter more broadly. OLC reasons that this rule has particular importance in congressional investigations because a broader waiver doctrine could discourage the Executive Branch from voluntarily providing information to Congress through the accommodation process. The opinion therefore gives the Administration a basis for making limited accommodations to Congress while preserving the ability to resist broader disclosures—a departure from the common-law attorney-client privilege context, where subject-matter waiver is typically the norm.
It remains to be seen how broadly the Administration will invoke the opinion in congressional investigations, and whether courts will endorse OLC’s framework when disputes over communications with private presidential advisers reach litigation. But private individuals in industry, academia, or elsewhere who advise the President or his direct advisers should be aware that the Executive Branch now has a formal standard for asserting privilege over qualifying communications—and that those communications may become the subject of future congressional demands for testimony or records.
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The OLC opinion, Applicability of Executive Privilege to Presidential Communications with Private Advisers, is available here.
This post is as of the posting date stated above. Sidley Austin LLP assumes no duty to update this post or post about any subsequent developments having a bearing on this post.
