Cutting through the confusion on executive privilege

Here’s what you need to know to cut through the confusion: Executive privilege is a presumption of confidentiality for the protection of the executive branch of the United States government. It is not a personal privilege for the benefit of any man or woman who happens to be, or have been, the president. A personal privilege would be, for example, the Fifth Amendment privilege against self-incrimination — a privilege to avoid producing testimony that might help the government prosecute the person holding the privilege.

Executive privilege protects from disclosure communications between the president and his advisers in furtherance of the duties of the presidency. The privilege has also been extended to communications and work product of subordinate executive staffers in the execution of the president’s duties. Even when the privilege legitimately applies, though, the confidentiality it extends is not absolute; it can be overcome by other important government interests. And notice, again, that the privilege protects and promotes the duties of the presidency, not the personal interests of the incumbent or former chief executive.

As the privilege belongs to the executive branch, and is only to facilitate executive functions, it follows that it may be asserted only by the single officer of government who actually has executive power — the incumbent president. So how do we get to this confused state of supposing it may properly be asserted by former presidents, who have no power of any kind — executive or otherwise?