A recent office of legal counsel memo on executive privilege maintains that private advisers to a president can avoid responding to a subpoena by asserting the president’s executive privilege. The ability of presidents to shield communications from public view through claims of executive privilege, whether their own or those of a senior adviser, was already a powerful tool for presidents to avoid accountability. But if courts accept the OLC’s new interpretation of presidential privilege, it will be substantially harder to call witnesses to testify before Congress or in court proceedings regarding possible wrongdoing by the presidents.
Equipping presidents with extensive power to block witnesses in legal proceedings is a dangerous practice that invites corruption by presidents and their advisers. Consider the former White House counsel Don McGahn’s 2019 refusal to testify in response to a subpoena by the House judiciary committee in connection with the special counsel Robert Mueller’s investigation into Donald Trump. McGahn didn’t come up with that idea on his own. It was the Trump White House that sought to bar McGahn from testifying through an assertion of a type of executive privilege known as “testimonial immunity.” Ironically, Mueller was investigating whether Trump obstructed justice, among other things, by demanding that McGahn fire Mueller himself. Trump’s insistence that McGahn not testify, backed up by a 2019 OLC opinion, effectively made the first Trump administration complicit in the very obstruction under investigation.
