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........

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