US Justice Department Expands Executive Privilege to Outside Advisers

The US Department of Justice's Office of Legal Counsel issued a legal memorandum on August 10, 2026, asserting that presidential executive privilege extends to confidential communications with private, non-governmental advisers. The doctrine protects these outside individuals from complying with congressional and court subpoenas.

The policy shift coincides with ongoing federal court battles in Washington between the Trump administration and the American Bar Association regarding executive directives targeting major law firms. The litigation has spurred requests for communications involving the administration, outside parties, and personal legal counsel.

White House counsel Gary Lawkowski formally argued in court filings on August 17, 2026, that the administration would withhold the names of individuals involved in drafting executive orders concerning targeted law firms under presidential privilege claims.

"The disclosure of the names of these individuals would reveal information that is inextricably intertwined with the President's decision-making process," said Lawkowski, White House lawyer.

Lawkowski added that identifying the individuals would expose senior White House advisors and their staffs tasked with formulating executive policy.

"That's an extremely broad claim of privilege," said Jonathan Shaub, law professor at the University of Kentucky.

Shaub noted that while presidential communications privilege traditionally protects the substance of confidential advice, the current effort seeks to shield even the names of non-governmental participants.