“The President’s authority to withhold certain sensitive information for the public good, today referred to as executive privilege, is ‘peculiar to our system of separation of powers’ and ‘derive[s] from the supremacy of each branch within its own assigned area of constitutional duties.’ United States v Nixon, 418 US 683, 705 (1974); see also Congressional Requests for Confidential Executive Branch Information, 13 Op. O.L.C. 153, 154 (1989) (‘Congressional Requests’). You have asked whether that privilege, and particularly the presidential communications component of it, permits the President to protect communications that he has with advisers who do not work for the Executive Branch. Determining whether the privilege applies to any specific communication would require additional information about the facts and circumstances surrounding that communication.”

“But as a general matter, executive privilege can apply to presidential communications with private advisers so long as the communications (1) relate to official presidential decisionmaking, (2) involve or reflect communications with the President or his direct advisers, and (3) are confidential,” says a new memo from the DOJ’s Office of Legal Counsel, an opinion crafted to walk backwards from the predetermined outcome of freedom to claim executive privilege over anything and everything.

The upshot of course is that when, for example, a Dem-led House committee subpoenas that crypto hustler “CZ” for documents about his corrupt dealings with the Trump crime family, including his pardon, and then the White House claims executive privilege because CZ offered “private advice” on “crypto policy” – shit that of course benefitted him and his company. This will then lead to a long, drawn-out court fights that will sap the momentum that powered the initial push for accountability, much like the 2019 investigations into Trump’s finances that took forever. However, now that the regime has already pissed away the “presumption of regularity” that most judges had accorded them, DOJ lawyers are going to have more difficulty throttling the cases as well.