Still, the court concluded that former presidents retain some quantum of executive privilege. The extent of confidentiality could not be defined with exactitude; it would depend on the circumstances — how important the proceeding in which information was demanded, and how closely connected to core presidential responsibilities were the communications at issue. But all that said, the court found that a former president’s claim of executive privilege was rooted in constitutional separation of powers. Ergo, it could not be extinguished, even by a congressional statute.

This was ill-conceived. A former president does not have power over the executive branch or any part of the government. Executive privilege belongs to the incumbent chief executive. The notion that it is retained by a former official defies the Constitution’s endowment of all executive power in the sitting president — the theory of the “unitary executive” endorsed by constitutional conservatives (including yours truly).

Ironically, the claim that former presidents retain executive privilege also defies the Constitution’s strict separation of powers as construed in federal jurisprudence. Let’s say President Trump were to win a seat in Congress. It is not permissible for a single official simultaneously to wield executive and legislative power. A House Speaker Trump could not conceivably assert executive privilege. How, then, could a private citizen Trump do so?

Donald Trump is not divested of executive power because he has some other government power. He is divested because he has no government power.