1. The protected communication must relate to a “quintessential and nondelegable presidential power.” Espy and Judicial Watch involved the appointment and removal and the pardon powers, respectively. Other core, direct precedential decisionmaking powers include the Commander-in-Chief power, the sole authority to receive ambassadors and other public ministers, and the power to negotiate treaties. It would arguably not include decisionmaking with respect to laws that vest policymaking and administrative implementation authority in the heads of department and agencies or which allow presidential delegations of authority.

2. The communication must be authored or “solicited and received” by a close White House advisor (or the President). The judicial test is that an advisor must be in “operational proximity” with the President. This effectively means that the scope of the presidential communications privilege extends only to the administrative boundaries of the Executive Office of the President and the White House.

3. The presidential communications privilege remains a qualified privilege that may be overcome by a showing that the information sought “likely contains important evidence” and the unavailability of the information elsewhere by an appropriate investigating authority. The Espy court found an adequate showing of need by the Independent Counsel; while in Judicial Watch, the court found the privilege did not apply, and the deliberative process privilege was unavailing.