Is there any type of "Executive Privilege" for ex-Presidents?

[politicallefty]

I don't see how there's an executive privilege for ex-Presidents. Article II establishes the executive branch, which is led by the President of the United States. Nowhere in the Constitution is the concept of executive privilege established. The notion of executive privilege is under the implied powers of the Presidency, just as oversight is an implied power of Congress and judicial review is an implied power of the Judiciary/Supreme Court. Unlike the other powers though, executive privilege is limited by the Constitution in the sense that the President is enforcing and executing the laws established by Congress. I'm not sure where the line is or should be, but it should err on the side of oversight and openness (except in cases of national security).

I would say that there is no executive privilege for an ex-President. Upon leaving office, he becomes a private citizen, with all that entails. The Constitution is clear in that executive power is vested in the President of the United States. The only individual that has or should have the power to invoke executive privilege should be the sitting President. If the sitting President chooses not to invoke the privilege, that should be the end of it. An ex-President does not hold any powers under the Constitution apart from the rights afforded to every other person under its jurisdiction. I've certainly never heard of any private individual's right to executive privilege without the backing of the President himself.

[politicallefty]

At best, your argument can be used to support invocations of executive privilege to those made by the sitting President, not to only those made on behalf of a sitting President. The reasoning for applying executive privilege to discussions with the current President, that ey can receive unvarnished advice from them subordinates, applies just as much to ex-Presidents. As I expressed earlier in a different thread, I expect that SCOTUS will first decide whether the information currently being requested meets the requirements for invoking executive privilege on behalf of a current President by the current President, and only if it does (which I expect they won't, tho I may be wrong) then go on to explore the issues of whether it applies on behalf of an ex-President and who must sign off on it.

Yes, I am arguing that there is no right of executive privilege granted to ex-Presidents apart from that granted to the sitting President. The Constitution is clear as to how the executive power is granted. A limited privilege for an ex-President can only exist so long as the sitting President is willing to exercise it on behalf of the former President. If the sitting President is not willing to exercise executive privilege on behalf of an ex-President, that should be it.

[politicallefty]

Why? Executive privilege is not an enumerated power of the executive. To the degree it has been inferred as an executive power, the reasoning has been that executive power requires being able to receive confidential advice on what to do when in office from his subordinate officials, so long as that advice concerns the lawful exercise of his executive powers.  If that confidentiality becomes subject to the discretion of a successor, who may well be a political adversary, it is far less secure and effective and thus weakens the value of executive privilege. I realize that our constitution is extremely naive when it comes to politics, and for that reason, I don't consider your argument entirely wrong, but since the whole scope of executive privilege is one of those constitutional penumbras inferred from the text, I find it runs counter to the whole rationale for having executive privilege in the first place.

However, since the information being sought neither concerns the lawful exercise of executive powers nor advice from a subordinate official, I agree that executive privilege doesn't apply in this case. That would be so, even were Trump still President. Hence, there is no need at this time for SCOTUS to decide if ex-Presidents can invoke executive privilege.

In any case, it would be wise to keep in mind that any decision concerning the invocation of executive privilege by ex-Presidents will not affect only Trump, but all ex-Presidents, including Democratic ones, if a future Republican Congress seeks information actually covered by executive privilege but a future Republican President declines to invoke executive privilege.

It is my belief that all executive power derives from Article II of the Constitution and what Congress allows through a matter of law. Inferring it from the executive power granted by the Constitution, the power lies with the President of the United States. An ex-President, a private individual, is not the President of the United States. That individual, and all other private individuals, have no claim on the powers granted under Article II. As for the rationale of executive privilege itself, I would indeed argue that it has gone far beyond the powers granted to the Presidency. Subordinate officials are almost all creations of law and established to execute the law as proscribed by law. I feel your argument runs against United States v. Nixon.

I have no concern as to how this works politically. If you've seen my posts in this board, you'd know that I generally have a narrow view of executive powers and privilege. That does not change based on the party balance. Additionally, I would say that the political doctrine at the Supreme Court has been used far more than it should be. I think it has legitimacy in some cases (such as impeachment), but most seem to be a cop-out to resolve the real and serious issues.