Republican senators confirmed Todd Blanche as Attorney General after extracting specific written assurances that he would protect DOJ’s independence. Hours after he was sworn in — the very same day — his Justice Department issued a 21-page Office of Legal Counsel memo that fundamentally rewrites who can hide behind executive privilege, and it isn’t limited to government officials at all.
WHAT THE MEMO ACTUALLY SAYS
The opinion, signed by Assistant Attorney General T. Elliot Gaiser, concludes that executive privilege can extend to conversations between Trump and private citizens who have no government job whatsoever — not just cabinet officials or White House staff, but donors, business associates, family members, informal advisers, members of the public, and even state officials. The stated legal test requires three boxes to be checked: the communication must relate to “official presidential decisionmaking,” involve or reflect communication with the president or his direct advisers, and remain confidential.
That sounds narrow until you notice who gets to decide whether any given conversation satisfies those boxes: the administration itself. As one legal analysis put it, the categories are vague enough that the White House can determine for itself whether a given conversation qualifies — with no independent check built into the process before a claim gets asserted.
THE TIMING IS THE STORY
This didn’t emerge from a vacuum. It arrived precisely as the administration is fighting an American Bar Association subpoena targeting Boris Epshteyn, Trump’s senior personal counsel — a man who holds no official government position, whose Russia ties were scrutinized when he left the first Trump White House, and who faced pay-to-play allegations during the 2024 transition. The subpoena relates to a lawsuit over deals the administration struck with law firms. National security journalist Marcy Wheeler flagged the obvious application: this memo effectively hands Epshteyn — and anyone in a similar informal-adviser role — a fresh legal shield right as Congress is trying to compel his testimony.
Former “Meet the Press” host Chuck Todd read the deeper signal correctly: the mere existence of a memo this broad is the White House acknowledging it expects a future of congressional subpoenas targeting private-sector figures who did “deals” with Trump and his family and friends — meaning this isn’t a defensive crouch against a hypothetical. It’s advance preparation for investigations the administration already expects are coming, almost certainly tied to a possible Democratic takeover of Congress after the midterms.
THE BROKEN PROMISE
This is what makes the timing genuinely damning rather than simply aggressive lawyering: Republican senators — including Bill Cassidy, John Cornyn, and Tom Tillis, the same Cassidy whose deciding vote we’ve already covered — confirmed Blanche specifically after securing his written commitment to limit exactly this kind of executive overreach. The New Republic’s assessment cuts to the point directly: Blanche’s first official act as confirmed AG was breaking that promise, on the same day he made it, in the most consequential way available to him.
MS NOW legal analyst Paul Butler, reacting live as the memo dropped, called the implications “seismic”: “Trump will assert it for almost anybody who is subpoenaed, it’s likely… now when anybody gets subpoenaed, we could expect Trump will say they don’t have to talk to Congress, ‘I’m asserting executive privilege.'” Butler’s closing line on air is worth repeating in full: “This is day one of the Todd Blanche era… if this is day one, I hate to think what next week looks like.”
WHY THIS ISN’T THE FIRST TIME, AND WHY IT MATTERS FOR EVERYTHING ELSE ALREADY DOCUMENTED
This memo doesn’t stand alone. The same DOJ apparatus has already taken other steps to shield records from public view, including a separate memo declaring the post-Watergate Presidential Records Act of 1978 unconstitutional — a claim a federal judge has already rejected once. Government Accountability Project’s Shaub told Axios this new opinion goes further than anything OLC has formally held in the past, even accounting for that agency’s historically broad reading of privilege, and expressed real doubt that courts will accept the theory when it’s actually tested.
Consider what this means layered on top of everything already documented: the $800 million corporate shakedown operation, the Capital One lawsuit, the $27 billion unlisted government equity stake portfolio, the Golden Dome contracts nobody can audit, the sons’ billions in defense deals. Nearly every one of those stories involves informal advisers, business associates, or family members whose conversations with the president could now, under this memo’s logic, be shielded from congressional subpoena entirely — provided the administration simply asserts the three-part test is satisfied. A federal court can still overrule that assertion case by case, and legal experts are skeptical this theory survives serious judicial scrutiny. But “eventually beatable in court, one subpoena at a time” is a very different, much weaker form of accountability than a Congress that can actually compel testimony in real time — and delay itself is often the entire point.