A memo issued on August 10 by T. Elliott Gaiser, assistant attorney general for the U.S. Department of Justice's (DOJ) Office of Legal Counsel (OLC), addresses presidential executive privilege (OLC memo). By long-standing practice, OLC opinions bind the legal positions of executive branch agencies but carry no authority over federal courts, leaving judges as the final arbiters of privilege disputes. University of Pennsylvania law professor Claire Finkelstein, in an op-ed for The Guardian, lays out the reasons she considers the memo's guidelines "dangerous."

"If courts accept the OLC's new interpretation of presidential privilege," Finkelstein warns, "it will be substantially harder to call witnesses to testify before Congress or in court proceedings regarding possible wrongdoing by the presidents. Equipping presidents with extensive power to block witnesses in legal proceedings is a dangerous practice that invites corruption by presidents and their advisers."

The Penn legal scholar notes that Trump is not the first U.S. president who "invoked claims of privilege regularly," but she argues that his administration and its allies at DOJ are taking the practice to a whole new level.

"Bill Clinton, for example, invoked it numerous times unsuccessfully to try to avoid responding to questions from the special prosecutor Kenneth Starr as well as to avoid testifying in a lawsuit brought by Paula Jones," according to Finkelstein. "The court found he had no immunity against a subpoena requiring him to appear at a deposition. Richard Nixon tried to invoke it to avoid having to turn over the infamous White House tapes, but the Supreme Court ruled he had to turn them over anyway. Even Thomas Jefferson and George Washington tried to invoke it in one form or another. But where courts have ruled, such claims do not usually prevail."

That Nixon ruling, United States v. Nixon (1974), remains the foundation of the modern doctrine: it recognized a qualified executive privilege while holding that it must yield to the demands of a criminal prosecution, and the privilege itself is nowhere expressly stated in the Constitution.

During Trump's first presidency, Trump allies tried to block former White House Counsel Don McGahn from testifying in Robert Mueller's investigation of Russian interference in the 2016 election, invoking a form of executive privilege known as "testimonial immunity." According to Finkelstein, this month's OLC memo goes "far beyond" an OLC memo issued on May 20, 2019 (document) that was "written to bolster the White House's block on McGahn." The McGahn dispute ultimately reached the courts: a federal district judge, Ketanji Brown Jackson — now a Supreme Court justice — rejected the position and ordered McGahn to testify, writing that "presidents are not kings," and the House lawsuit ended in a 2021 settlement under which McGahn sat for a closed-door transcribed interview.

"That memo justified testimonial immunity using the claim that senior aides to the president 'are an extension of the President and are likewise entitled to absolute immunity from compelled congressional testimony,'" Finkelstein explains. "But that argument is inapplicable to private persons who consult with the president. While executive privilege and testimonial immunity are not identical, they are sufficiently alike that the rationale for their invocation is the same, and neither should apply to non-governmental advisers."

The Penn legal scholar continues: "The current memo is also concerning because of its lack of candor about the historical precedent for executive privilege…. The quality of OLC argumentation sets a standard for legal practice across the federal government, as well as in the private sector. It is critical for the profession to reject the sort of outcome-oriented analysis the OLC has engaged in here, and federal courts must play a role in ensuring such legal analysis does not become par for the course across the legal profession."

Because OLC opinions do not bind judges, any real-world test of the new memo would come through litigation — the arena where, as Finkelstein recounts, privilege claims have historically not fared well when courts have ruled on them.