DOJ memo decried as effort to shield inner circle: 'Trump is scared'

Just days after Senate Republicans confirmed US Attorney General Todd Blanche, the Department of Justice this week issued a legal opinion on executive privilege that was swiftly condemned as an attempt to unfairly protect some of President Donald Trump’s top advisers from any accountability.

Historically, the president has been allowed to assert executive privilege over communications with executive branch staff, protecting them from disclosure.

However, the DOJ’s Office of Legal Counsel (OLC) said in a Monday memo that “presidential communications with private advisers can fall within the scope of executive privilege so long as they relate to official presidential decisionmaking, involve or reflect communications with the president or his direct advisers, and are confidential.”

The memo is signed by Assistant Attorney General T. Elliot Gaiser. HuffPost reported that a DOJ official “argued its veracity by comparing it to a similar one made by President George W. Bush’s attorney general in 2007.”

“While the issue has not been litigated frequently, the opinion reaffirms the long-standing position of the office going back at least as far as Paul Clement in 2007 and arguably as far back as 1972,” the unnamed official said.

Jonathan Shaub, a University of Kentucky School of Law professor who served in the Obama administration’s OLC, told CNN: “I would say it’s not inconsistent with past positions... But it’s never been stated publicly.”

Shaub also told Axios that “it really could be a pretty significant weapon” for the second Trump administration “to deflect a lot of that congressional investigation of private parties.”

Republicans are at risk of losing control of both chambers of Congress in the November midterm elections, and if they do, Democratic majorities could move to impeach Trump a historic third time—for everything from the Trump family’s profiteering off of the presidency to his illegal war on Iran.

The Not Above the Law coalition’s co-chairs—Brett Edkins of Stand Up America, Praveen Fernandes of the Constitutional Accountability Center, Lisa Gilbert of Public Citizen, and Kelsey Herbert of MoveOn—said Tuesday that “Todd Blanche’s Justice Department is doing what it always does: attempting to shield Donald Trump and the people around him before anyone can hold them accountable.”

“This opinion is about protecting Trump and his allies from any real accountability, no matter where the questions come from—Congress, the courts, or investigators of any kind,” they argued. “Every senator who voted to confirm Blanche knew exactly what kind of Justice Department they were signing off on. They own it now.”

Senate Minority Leader Chuck Schumer (D-NY)—who may not have enough support to lead Democrats even if they reclaim the upper chamber in November—was similarly critical, concluding: “Donald Trump is scared. He knows accountability is coming.”

“He’s using his newly installed attorney general/personal lawyer, Todd Blanche, to cover up his communications with private advisers and special interest cronies,” Schumer said on Facebook. “These are the actions of someone with something to hide. And it shows he is petrified of the questions a Democratic Congress will demand answers to. We will not let Trump escape the accountability he deserves.”