by Karen Kinard
President Trump can now shield his communications with parties outside his executive branch from disclosure, according to a newly issued advisory from his Department of Justice. Communications with White House advisers within a president’s administration have long been protected. However, the recently expanded protection in the revised “executive privilege” memo from the DOJ’s Office of Legal Counsel (OLC) is raising serious alarm among transparency advocates and legal scholars.
The revised memo is controversial precisely because it attempts to recast public‑facing communications as privileged presidential deliberations, even when they involve private individuals, business executives, political allies, donors, or possibly extremist groups. Historically, privilege has only covered internal governmental decision‑making, not communications that could reveal coordination, pressure, promises, or quid‑pro‑quo arrangements with outside actors.
If accepted, it could be used to hide a lot, all while evading the accountability mechanisms relied upon by Congress and the courts. Critics warn that this approach would weaken the Freedom of Information Act (FOIA), undermine checks and balances, and allow a president to retroactively classify public‑facing communications as privileged whenever scrutiny becomes inconvenient.
For most of modern history, the only presidential communications shielded from disclosure under FOIA or congressional requests were internal, nonpublic communications with government advisors. The privilege protected areas such as policy deliberations, draft speeches, national‑security briefings, internal emails, and advice from Cabinet officials or White House staff.
The revised OLC memo is already being used, and the American Bar Association (ABA) has objected to it in its case against the president’s executive orders pressuring major law firms. Some firms have successfully resisted the intimidation, while others entered into large settlements with the administration. Most of the firms targeted by the administration have major offices in Virginia, and nearly all have represented large Virginian military-contracting clients.
The ABA’s filing argues that the revised memo is being used to retroactively cloak actions that were never privileged: political coordination with private lawyers, pressure on firms to provide free services, and discussions about executive orders already ruled unconstitutional. By expanding privilege to nongovernment actors, the memo effectively creates a legal barrier preventing the ABA from obtaining evidence about whether the administration used federal power to coerce the legal profession.
The ABA said this expansion is designed to “frustrate oversight” and allow the administration to assert that communications with Boris Epshteyn are protected. Epshteyn, who served as Trump’s liaison with targeted law firms, was not a federal employee and therefore not subject to federal ethics rules. In short, the memo is being used as a strategic obstruction tool, allowing the administration to argue that the very communications the ABA needs to prove harassment are now off‑limits because they have been reclassified as privileged presidential deliberations.
If the midterms result in one or both chambers of Congress coming under Democratic leadership, planned oversight investigations could be blocked or hung up in courts by the revised OLC memo alone. When investigators examine a president’s communications with private individuals, they look for patterns that could reveal whether official power was traded for personal benefit. Discovery in court cases would include messages that could show requests for foreign payments, promises of favorable treatment, extortive pressure to donate, or threats of retaliation if support is not provided.
Use of the OLC opinion, if challenged in court, would delay examination of timing correlations between communications and subsequent government actions, such as regulatory changes, contract awards, pardons, or policy shifts that benefited the person communicating with the president. Public-corruption investigators seek financial records, call logs, encrypted messages, meeting notes, drafts of public statements, and intermediaries’ communications to determine whether public messaging was coordinated with private demands. They also examine whether individuals were granted access, appointments, or government advantages shortly after private exchanges.
In corruption cases, the most telling evidence often comes from informal channels — texts, social‑media direct messages, personal email accounts, or communications routed through aides — because these can reveal intent, pressure, or quid‑pro‑quo arrangements that official records do not capture.
This new obstruction tool was approved by his narrowly confirmed attorney general, Todd Blanche, and it builds on a controversial settlement that members of Congress and the courts have repeatedly tried to kill. The president has long been determined to stop investigators from following the money. Scrutiny has followed the settlement of the president’s $10 billion lawsuit against his own Justice Department, including concerns about the nearly $2 billion “slush fund” designed to pay off allies, even some connected to the violent January 6th attacks on police officers, and an addendum that purports to bar the Internal Revenue Service (IRS) from pursuing existing audits or enforcement actions against Trump and his family.
Critics argue that the language in the settlement addendum functions less like a routine civil settlement and more like a sweeping immunity provision, effectively shutting down any pending IRS inquiry into potential tax fraud, misreporting, or improper deductions that might have surfaced through normal review. While the addendum does not erase liability for future violations, its breadth means that past conduct, including years of complex business filings, is insulated from examination — a protection no prior president or presidential family has received.
Legal analysts warn that this kind of blanket shield undermines the integrity of tax enforcement, creates a two‑tier system of accountability, and raises constitutional questions about whether the executive branch can unilaterally extinguish investigations into itself. The president is appealing the court’s decision that the settlement is a “fraud upon the court.” Blanche’s 11th-hour document ending the slush fund/tax immunity deal, issued to win two senators’ votes and gain confirmation, appears far from ironclad.
As a candidate and as president, Trump has never followed the post-Nixon norm of releasing tax documents. For decades, presidents of both parties voluntarily released their tax returns as a basic gesture of transparency, allowing the public to see potential conflicts of interest, financial pressures, or entanglements that might influence decision‑making. Trump broke that tradition by refusing to disclose his returns throughout his presidency and for years afterward, fighting congressional requests and court orders.
Trump’s refusal raised concerns among ethics experts and government‑accountability advocates, who argued that withholding this information prevented voters from understanding the full scope of his financial interests, business debts, and foreign income streams. The break from long‑standing presidential practice created a precedent that future presidents could use to shield their finances from scrutiny, weakening a norm that had helped maintain public trust in the office for nearly half a century.
Many have forgotten the 2019 Muller Report conclusion: “If we had confidence after a thorough investigation of the facts that the President clearly did not commit obstruction of justice, we would state so. Based on the facts and the applicable legal standards, however, we are unable to reach that judgment.” Muller also was limited by a Nixon-era OLC opinion that a sitting president could not be criminally prosecuted because indictment would “impermissibly undermine” the executive branch’s ability to function. This continued to be the OLC’s view in 2000, following former President Clinton’s impeachment.
No one has mastered the art of obstruction better than Trump, and he is using the DoJ as his personal law firm. Massive voter turnout on November 3 (early voting starts September 18 in Virginia) is crucial to building a Democratic congressional majority that will demand transparency and accountability and break through the president’s walls of obstruction.