The Trump administration is taking executive privilege too far

The Trump administration’s latest attempt to protect the president from possible future investigations comes in a Justice Department Office of Legal Counsel memorandum claiming that executive privilege protects a president’s communications with private advisers.

The memo invokes numerous examples of presidents consulting people outside the government. But the fact that presidents have long sought advice from private citizens does not establish that those conversations are constitutionally protected from compelled disclosure.

Presidents routinely consult scientists, economists, business leaders, governors, former officials and other private citizens. Nothing in the Constitution requires a president to receive advice only from White House advisers or department secretaries. Yet the authority to seek advice is not the same as the authority to prevent its disclosure.

Executive privilege is an exception to the customary principle that the government must provide information when Congress, a court or another lawful authority demonstrates a legitimate need for it. In United States v. Nixon , the Supreme Court made clear that a generalized interest in confidentiality does not create absolute protection. Even presidential communications may yield to a demonstrated need for information.

The memo also relies on the Federal Advisory Committee Act , which regulates certain committees established or used to advise the president or federal agencies through public-access and disclosure requirements. But the Office of Legal Counsel’s own 1974 opinion did not conclude that executive privilege placed private advisory groups beyond those requirements. Instead, it stated that the privilege would not invalidate the law’s regulation of presidential advisory committees, although it might limit particular applications of the statute.

Nor did the D.C. Circuit’s decision in Association of American Physicians and Surgeons v. Clinton establish a constitutional privilege for private advisers. That case interpreted the law in light of concerns that an overly broad reading could interfere with the president’s ability to solicit outside advice. It did not decide whether private advice was protected from a subpoena.

The Office of Legal Counsel reasons that because presidents need outside advice, they must be able to guarantee its confidentiality through executive privilege. Yet no Supreme Court or lower-court decision holds that a private citizen becomes the functional equivalent of a White House adviser whenever a president seeks that person’s advice.

The White House nevertheless treats the distinction between private and government advisers as largely irrelevant and argues that privilege should depend on a communication’s purpose and confidentiality rather than the adviser’s employment status. Employment status, however, is not merely an inconvenient distinction. Government officials operate under legal and institutional constraints that private advisers generally do not.

Public officials take an oath and are subject to ethics rules, records management requirements and financial disclosure obligations. Depending on their positions, they may undergo background investigations and receive security clearances before accessing sensitive information.

Private advisers may face none of these requirements. They could be campaign advisers, donors, lobbyists, family members, contractors, business partners or representatives of industries affected by government policy. They may have financial interests in the matters being discussed or may advance the interests of clients, companies and political organizations rather than provide disinterested advice.

These differences weigh in favor of openness, not secrecy. Under the framework proposed by the administration, executive privilege could protect a corporate executive advising a president about regulations affecting that executive’s own industry.

The Supreme Court’s treatment of the Freedom of Information Act’s consultant corollary illustrates the problem. In Department of the Interior v. Klamath Water Users Protective Association , the court distinguished outside consultants functioning like agency employees from outsiders representing their own interests. It refused to treat interested outside parties as neutral government consultants. In other words, not every outsider who supplies information to the government is acting on the government’s behalf.

The Office of Legal Counsel’s memo also invokes legislative privilege, pointing to lawmakers’ meetings with constituents, political organizations and interest groups. But that analogy fails. Legislative privilege does not make every conversation between a lawmaker and a private interest group categorically immune from inquiry. More fundamentally, the constitutional position of legislators meeting with constituents does not determine the scope of presidential communications privilege. The two privileges have different textual foundations, histories and bodies of precedent.

Accepting this expansion of executive privilege would allow presidents to confer the benefits of public office without its corresponding obligations. Private individuals could influence public decisions while avoiding ethics requirements, disclosure rules, recordkeeping obligations and congressional inquiry.

Executive privilege is a legitimate constitutional protection, but it is not absolute. It should not be expanded to draw private relationships into the presumptively protected sphere of certain presidential communications. Its scope must remain connected to the institutional needs of the presidency and balanced against the constitutional responsibilities of Congress and the courts.

Mitchel A. Sollenberger is a professor of political science at University of Michigan-Dearborn. Mark J. Rozell is dean and the Ruth D. and John T. Hazel Faculty Chair in Public Policy at George Mason University. They are authors of “Executive Privilege: The Use and Abuse of Presidential Secrecy from Washington to Trump. “