Opinion
The Trump administration’s latest assertions about executive privilege — that it protects the confidentiality of a president’s communication with private advisers who aren’t part of the government — are like too much else in this White House: politically unprecedented, legally wrong and morally dubious.
From a legal standpoint, the point of executive privilege is to protect communications that occur within the government, between the president and other public officials. Politically speaking, this is a naked attempt to protect the president from congressional investigation of potentially corrupt deals with his cronies, any of whom who could be called “advisers” to avoid subpoena.
If President Donald Trump invokes this executive privilege in future fights with Congress, as seems likely, the legislative branch cannot fold. It must insist on its rights, bring the issue to court, and force the Supreme Court to reject the claim.
The Trump administration’s claims come in the form of a new memo by the assistant attorney general in charge of the Office of Legal Counsel, known as OLC. Historically, OLC has tended to adopt a maximalist position on presidential power. At the same time, the office has traditionally worked to maintain legitimacy by sticking to its independent understanding of the scope of presidential authority. That is supposed to mean not knuckling under to White House pressure except in rare (and infamous) cases, such as the so-called torture memos written and subsequently withdrawn by OLC lawyers under President George W. Bush.
As this memo demonstrates, Trump’s OLC has no qualms about giving the president exactly what he wants.
But the doctrine of executive privilege has never been extended to conversations between the president and people who were not part of the government. The memo claims support from a 2007 OLC memo signed by then-acting attorney general Paul Clement. That memo suggests that executive privilege could extend to government officials outside the executive branch, which is a debatable point that the courts have not addressed. At any rate, that memo was specifically referring to conversations between the president and members of the Senate who would play a role in confirming US attorneys. That comes nowhere near the claim that the president should just be able to apply the privilege to conversations with private citizens.
Nor does the Trump memo have any convincing arguments why it should. It says that some experts are not in the government and the president should be able to get their unvarnished opinions. But a modern government should include experts capable of advising the president on every important topic. If the best experts are on the outside and the president wants their confidential advice, he can always bring them in, the way he brought in various Department of Government Efficiency advisers from the private sector at the beginning of his second term. Once they are official White House employees, their communications with the president would be privileged.
One of the most shocking parts of the memo is its assertion that private advisers without guaranteed confidentiality might be constrained in what they would say to the president because of “concern about appearances”. As OLC seems not to realise, that concern nicely captures the madness of this assertion of executive privilege: It is essentially saying that the president and his cronies should be able to make all kinds of corrupt deals or bargains, whether illegal or just immoral, without worrying about them being disclosed.
Put another way: When people who don’t work for the government talk to the president, it is entirely appropriate — desirable, even — for them to be concerned about appearances.
More than any other administration in recent history, Trump operates on the basis of personalised relationships. He doesn’t just call executives of major companies to get advice. He calls to bully them into doing what he wants. No doubt he also receives calls from people seeking favours. In both cases, these kinds of communications should not be protected by privilege under the guise of advice-to the president.
Consider why executive privilege exists in the first place. The core idea is that the president should be able to get the advice he needs to run the government from the people who are best suited to provide it.
Those people are government officials, who take an oath to uphold the Constitution and follow the laws. They are subject to all kinds of conflict-of-interest rules designed to make sure their advice is based on the national interest.
What’s more, the identities of White House advisers are public. That’s because in a democracy, the public is entitled to know who is advising the president — and to be sure that they are serving the nation’s interests, not their own.
In the White House, the president can hire and fire the advisers he wants. They don’t have to be confirmed by the Senate. They do, however, have to be loyal to the government elected by the people. For their communications with the president to be protected by executive privilege, the adviser should have to be fully committed to their public role.
There are other problems with the memo. For example, it repeats the traditional rule that privilege extends to “communications solicited and received by the President or his direct advisers.” But it would clearly be crazy to apply that rule when White House officials who are not the president consult private parties on policy. That would expand what’s already an outrageous claim of privilege for the president into an even more outrageous privilege for many White House officials when they are speaking to private parties.
What’s more, the memo doesn’t say whether the “direct advisers” covered by the privilege would now include private non-governmental advisers. If it did, then the consequences would be perverse. A CEO, for example, could claim adviser privilege in a document he or his staff created, in anticipation of speaking to the president — with the result that executive privilege could extend well into corporate America.
The biggest problem, though, is the obvious one. Donald Trump, the most corrupt president of the modern age, is asserting a broad new executive privilege designed to protect precisely corrupt cronyism. Neither Congress nor the courts can let that become the law.
Noah Feldman is a Bloomberg Opinion columnist and a professor of law at Harvard University. He is an author, most recently, of To Be a Jew Today: A New Guide to God, Israel, and the Jewish People.
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Noah Feldman is a Bloomberg Opinion columnist. A professor of law at Harvard University, he is author, most recently, of “To Be a Jew Today: A New Guide to God, Israel, and the Jewish People.”From our partners
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