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The Memo That Lets Trump’s Private Advisers Hide From Congress

A Memo Nobody Voted For

On August 11, the Justice Department's Office of Legal Counsel issued an opinion that quietly rewrote one of the oldest rules of American executive power. Executive privilege — the doctrine that lets a president keep certain communications secret from Congress, the courts, and the public — has always applied to conversations inside the government. Cabinet secretaries. National security advisers. People who answer to the president and, in theory, to the public through him.

The new memo extends that privilege to people who answer to no one. Corporate lobbyists. Campaign donors. Personal lawyers. Anyone, in the OLC's words, "the President consults outside the Executive Branch." As long as the conversation touches official decision-making, involves the president or his direct advisers, and stays confidential, it now qualifies for the government's strongest secrecy protection. No one elected these people. No one confirmed them. No one can fire them. And now, in many cases, no one can find out what they told the president or why.

The Case Behind the Curtain

The timing is not incidental. The opinion landed as the administration fights a subpoena from the American Bar Association aimed at Boris Epshteyn, Trump's senior personal counsel, in a lawsuit over deals the administration struck with law firms. Epshteyn holds no government title. He draws no government salary. Under the old reading of executive privilege, that would have mattered — privilege protects government communications, not the private counsel of a president's friends. Under the new reading, it doesn't.

Legal experts quoted across the coverage are skeptical courts will accept the theory wholesale; OLC opinions bind the executive branch internally but carry no weight in front of a judge. That's not really the point. The point is what happens before a case ever reaches a judge — how many subpoenas get slow-walked, how many document requests get met with a privilege claim that takes years of litigation to test.

A Backup Plan for a Different Fight

This is the second time this year the OLC has moved to narrow what the public gets to see of this presidency. In April, another opinion argued the Presidential Records Act itself is unconstitutional — that Trump isn't bound by the 1978 law requiring presidents to preserve and eventually release their records. That argument is still working through the courts. The August memo functions as insurance if it loses: if the Presidential Records Act survives, the administration can simply argue that records involving outside advisers are covered by privilege and withheld anyway. Two separate legal theories, same outcome — a shrinking set of records anyone outside the West Wing will ever see.

Scott Amey, general counsel at the Project On Government Oversight, called it plainly: an effort to conceal information "for a decade or more." Senator Adam Schiff was more direct still, describing the opinion as a partisan move meant to insulate the president's activities from congressional subpoenas "when the majority flips." Both are describing the same bet — that oversight power in Washington changes hands on a predictable clock, and that the paperwork should be locked down before it does.

Who Guards the Records Now

The question of who checks this kind of secrecy claim usually falls to the Archivist of the United States, the official statutorily charged with protecting and preserving federal records. The Senate confirmed a new archivist this month — Bradford Wilson, approved in a bulk vote alongside 73 other nominees, with no background in archival work. Whether he treats the office as a check on the White House or a formality is, at this point, an open question with no precedent to answer it.

Meanwhile the pattern keeps repeating in smaller rooms. The Department of Homeland Security has been inconsistent about publishing legally required privacy assessments for its surveillance technology. The Department of Health and Human Services is fast-tracking the release of one official's records to discredit him publicly, while other agencies refuse to disclose even basic staffing details about the dismantled DOGE office. Selective disclosure, weaponized in one direction and stonewalled in the other, is not transparency. It just looks like it from a distance.

What's Left Unwritten

None of this required a vote, a hearing, or a headline splashy enough to break through. It required one memo, filed on a Tuesday, from an office whose job used to be telling presidents what they couldn't do. The people this privilege now shields were never supposed to need it — they were never inside the building it was built to protect. The record of what they said to the most powerful person in the country may simply never exist for anyone to read, win or lose in court. That's not a loophole. At this point, it's the design.