that lean against that ruling are based on whether the public interest is to be decided by a former president alone. The way I read it, their answer is no, that elections privilege current presidential power over that of a former president. Trump exerted that power over Bush, and Biden can exert the same over Trump.
The historical test governing when executive privilege is appropriate requires the president to determine whether the release of specified information would be in the public interest. Even if it is true that a former president may have more information about the particular documents or testimony at issue, it is difficult to understand on what basis, in that circumstance, a former president has authority to decide what is in the public interest. A White House or agency official will often have much more information than the president about the nature of particular communications subject to a claim of executive privilege. But those officials have no authority to decide to withhold information to protect the public interest. That decision belongs to the president alone. A former president no longer has any authority to make decisions about the public interest. In this case, the people chose to give that authority to Biden, not Trump, in the 2020 election.
The proper interpretation of the GSA case and the role of former presidents has been a subject of controversy in executive orders governing the disposition of presidential records. In November 2001, President George W. Bush issued an executive order that gave former presidents the absolute right to assert executive privilege over their records and preclude their release by the archivist, who is now charged with maintaining presidential records. The Bush order stated that “the former President independently retains the right to assert constitutionally based privileges,” even if the incumbent president did not support the assertion. President Obama revoked that order on his first full day in office and restored the framework that had previously governed the records of living, former presidents. Under Obama’s order, the archivist first independently evaluates the records request and makes a recommendation. But ultimately, the archivist must “abide by any instructions given him by the incumbent President,” no matter what the former president has directed, and current regulations governing the disclosure of former presidents’ records to Congress allow the former president to assert privilege only when the incumbent president supports that assertion.
https://www.lawfareblog.com/can-former-president-assert-executive-privilege-impeachment-trial
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