A DOJ privilege memo just moved the subpoena perimeter into the general counsel's office

The Justice Department's Office of Legal Counsel has produced a memo arguing that executive privilege covers President Donald Trump's contacts with "private advisers ... so long as they relate to official presidential decisionmaking" ^[2], a signal of an assertion over a wide swath of his communications with the private sector ^[1]. Spokespeople for SpaceX, Nvidia, OpenAI, Meta, and Apple did not respond to Semafor's requests for comment on it ^[3] - five companies, all of them with chief executives who have allied with Trump ^[9].

Read the operative clause carefully, because it is the whole story. The condition in the quoted language attaches to the subject matter of the conversation, not to the job title of the person on the other end of the phone ^[2]. That means the category is defined after the fact, by whether a given exchange is later characterized as relating to official presidential decisionmaking, and not by anything a founder or a chief executive decided at the time they sent the message.

Alyssa DaCunha, who co-chairs WilmerHale's Congressional Investigations practice, told Semafor that a broad assertion of this kind, if it survives scrutiny, "could potentially sweep in an incredibly broad category of individuals, many of whom would likely be surprised to learn that they could be considered presidential advisers," given the president's habit of engaging widely with friends and private-sector leaders ^[7]. That is the practical exposure. One legal expert cited by Semafor warned the assertion could draw in a large group of corporate leaders in contact with Trump, in light of his freewheeling communication style ^[8].

The timing is not accidental. Semafor characterizes the memo as a sign the administration is preparing to challenge investigations by a potential House Democratic majority ^[4], and reports that Democrats are eager to obtain private-sector communications precisely as a route around administration stonewalling, with any attempt to shield them likely to be litigated ^[5]. Rep. Robert Garcia of California, the top Oversight Committee Democrat, said "we are ready to fight to uphold our power and authority" ^[6].

For operators, the consequence is that a dispute between two branches of government now runs through corporate document systems. If subpoenas land on companies rather than on the White House, the recipient bears the preservation duty, the review cost, and the timing risk, while the privilege at issue is one the administration is asserting ^[2][5]. The quoted passage of the memo says nothing about how a subpoenaed company should behave when it receives a demand ^[2], which leaves that judgment to each company's counsel under litigation pressure.

The silence from all five firms is, in my reading, the cheapest available option rather than a position. Any public comment on the memo becomes a data point in a fight that has not started, and endorsing the theory invites questions about which conversations a company thinks it covers.

What to watch: whether any of the five named companies says anything on the record ^[3]; whether the OLC position is tested in court, which Semafor expects if it is used to shield private-sector communications ^[5]; and whether outside counsel start advising executives to log which of their presidential contacts touch official decisionmaking, because that is the line the memo draws ^[2].