Rather than counting on election magic — or interference — to forestall trouble from midterm voting that looks likely to flip at least one house of Congress, President Donald Trump last week had the Justice Department's Office of Legal Counsel (OLC) issue a new opinion arguing that he can assert executive privilege over communications with "personal advisors" even if they do not work at the White House or within the government at all.

The opinion is a preemptive interpretation that would broaden the number of people Trump could try to shield from the flood of congressional investigations that a Democratic majority in either the House or the Senate would launch if the party succeeds in November.

That matters because executive privilege is not just a procedural shield; in practice, it can affect how much Congress can learn about how decisions are made, especially when lawmakers are already preparing requests tied to records, testimony and internal deliberations. The OLC's move also fits a broader pattern in which the administration has tried to keep scrutiny at arm's length just as oversight threats are gathering.

As a matter of public policy, the move conforms to the administration's standard of delay and resistance toward any inquiry into what Team Trump is doing on war and peace, economics and tariffs, immigration, the environment, health, government and budgets. As a matter of law, the assessment was blunt.

"The legal opinion has more holes in it than a slice of Swiss cheese," Charles Tiefer, a professor emeritus at the University of Baltimore School of Law, told Talking Points Memo. "It's clearly a devious tactic to try to cover up the investigations into Trump's corruption before they even get started."

Trump makes no secret that he prefers to discuss economic policy with corporate leaders rather than, say, U.S. intelligence sources or domestic policy staffers — particularly when those corporate officers throw million-dollar donations his way. Congressional hearings have also made clear that Cabinet members feel no public responsibility to discuss controversial topics from vaccine policy to war decision-making, and regularly turn questions into opportunities to attack the patriotism of any congress member or senator who sounds at all critical.

The prevailing mantra, as the original report frames it, is to back Trump and whatever he orders without question about substance or process, about legalities or constitutionality, because the ends always trump the means.

A Clear Message to Back Off

The Hill noted that the Justice Department opinion is not "binding," but that it nonetheless signals the Trump administration is thinking about how to respond to pending investigations.

In a political season in which voters are turning out in droves to tell sitting officials that they are wrong and that Trump policies are worsening their lives, the opinion reads as a signal that Trump — armed with a Supreme Court decision on immunity from criminal investigations — simply does not think he should ever be questioned.

Members of Congress have already told administration officials to hold on to notes and documents on issues ranging from the handling of the Jeffrey Epstein files to decision-making about launching strikes against small boats in the Caribbean.

Trump's strategies for eluding Congress in order to act unilaterally — strategies that are failing systematically before the courts over tariffs and various aspects of mass deportation policy — appear to be ripe targets two months before the elections.

The Traditional Rule and the OLC's Departure

Traditionally, the president may assert executive privilege over communications only with executive branch staff. The OLC opinion argues instead that Trump could seek and obtain privilege covering people outside the government, adding that such communications merit protection.

"Without a promise of confidentiality, the President's ability to 'decide and act quickly' on matters of unrivaled importance would be seriously hindered," the opinion states.

Even the opinion itself suggests Trump could assert executive privilege for discussions with outside advisers only when they are "limited to communications 'in performance of (official) responsibilities,' and made 'in the process of shaping policies and making decisions.'"

That narrowing language leaves the administration with a built-in test it may still have to defend if Congress asks for records or testimony, which is one reason the opinion is being watched less as a final answer than as a marker of how far the White House wants to push its claims. This is the same OLC that decided in April that the White House should not have to comply with the Presidential Records Act, which mandates the broad preservation of White House records, including communications between staff — or retain Trump's myriad posts on his own Truth Social outlet. The following month, a federal judge ordered the Trump administration to comply with existing records law.

The Attorney General's Launch

Todd Blanche's first week as a confirmed attorney general got off to a bad start amid criticism that even his first speech to Justice Department prosecutors was rife with contradictions between what was said and what he has done.

Blanche promised a Justice Department marked by integrity, impartiality and respect for the rule of law, only to draw an avalanche of public response underscoring that his record as acting attorney general has been the opposite. He has not only allowed but invited White House interference in an "independent" Justice Department, saying aloud that Trump should refer criminal prosecutions of those in his political way.

On Sunday, Blanche declined to say that he would always act independently of White House control, but claimed during an interview that President Trump has "never" demanded that he prosecute specific people — a statement sitting uneasily beside Trump's demanded prosecutions of former FBI director James Comey, New York Attorney General Letitia James, and even the former Olympic canoeist who picked up a piece of floating paint in the reflecting pools.

Blanche has shown that he is willing to sign off on prosecutions without first seeking evidence of wrongdoing, that he sees judges who rule against the Justice Department as radical leftists, and that he considers the department better off having lost 16,000 prosecutors while turning Civil Rights and antitrust enforcement upside-down.

Trump, meanwhile, is talking openly about renewing the so-called anti-weaponization fund under different auspices to reward those convicted over Jan. 6, 2021 crimes, including those who attacked police officers — even as Blanche was talking about Justice "backing the blue."

And as a member of Trump's inner circle, Blanche — Trump's former personal lawyer — no longer needs a special opinion declaring him a "private advisor" to claim executive privilege. In the author's assessment, Blanche is "a pending co-conspirator to undercutting the Constitution."

About the Author

Terry H. Schwadron retired as a senior editor at The New York Times, deputy managing editor at the Los Angeles Times, and held leadership roles at The Providence (RI) Journal-Bulletin. He was part of a Pulitzer Gold Medal team in Los Angeles, and his team was part of several Pulitzers in New York.

Source: Alternet