A recent Office of Legal Counsel memo says private advisers to a president can avoid responding to a subpoena by asserting the president’s executive privilege. The move could make it much harder to force witnesses to testify in Congress or in court when the questions involve possible wrongdoing by presidents.
That is why the memo is drawing attention now: it reaches beyond the narrow dispute that made Don McGahn a test case and tries to put a broader shield around people who are not government officials but still consult with the White House. McGahn refused to testify in 2019 after a House judiciary committee subpoena in connection with Robert Mueller’s investigation into Donald Trump, and the Trump White House tried to block him with a claim of testimonial immunity.
The 2019 memo that backed that position took a sweeping view of the president’s circle, saying senior aides to the president “are an extension of the President and are likewise entitled to absolute immunity from compelled congressional testimony.” In practice, that theory was aimed at people inside the administration. The latest memo goes further. It says private advisers can invoke executive privilege itself, even though they are not the same thing as presidential aides and even though the privilege belongs to the president’s communications, not to every person who has contact with him.
McGahn’s fight showed how that can play out. A 2019 Office of Legal Counsel opinion supported Donald Trump’s insistence that McGahn not testify. Ketanji Brown Jackson, then a federal district court judge, rejected the privilege claim and ordered McGahn to testify. After the Trump administration appealed, the legal posture flipped back and forth before the parties reached a settlement that let McGahn speak behind closed doors.
That history matters because courts have often been skeptical of these claims when they reach a ruling. Bill Clinton invoked executive privilege repeatedly and unsuccessfully when Kenneth Starr sought answers and later in the Paula Jones lawsuit, and the court found he had no immunity from a subpoena requiring him to appear at a deposition. Richard Nixon tried to keep the White House tapes secret, but the supreme court ordered him to turn them over. Thomas Jefferson and George Washington also tried to invoke executive privilege in one form or another. The pattern is clear: presidents may assert the power, but it does not usually survive judicial review.
That is the friction point in the new memo. It tries to extend a doctrine that has already been narrowed by courts to people outside the presidency itself. The argument that senior aides can be treated as an extension of the President does not fit private persons who merely consult with him, which is why the memo may prove more ambitious on paper than it is durable in a courtroom.
What happens next is straightforward even if the answer is not: the memo gives new fuel to subpoena fights, but it does not settle them. If Congress or a court pushes back, the question will be whether judges treat private advisers like McGahn’s case or draw a hard line between executive privilege and testimonial immunity. That line will decide whether the memo becomes a working shield or just another claim that courts reject.
