The first judge who sees Donald Trump’s executive privilege lawsuit should do one thing immediately.

Toss it.

There’s a legal term for something Trump simply doesn’t have in this case, and that term is “standing.” You’ve probably heard of cases being because the person bringing the suit doesn’t have standing.

According to the Cornell Law School, “at the federal level, legal actions cannot be brought simply on the ground that an individual or group is displeased with government action or law.”

Yet this is exactly what Trump, a private citizen, is doing. He’s suing because he doesn’t like what Congress is doing, claiming executive privilege. But that claim doesn’t fly because he’s not part of the executive branch. He therefore lacks standing.

Neil Eggleston, who served as White House counsel in the Obama administration, explained the issue succinctly in Harvard Law Today. Eggleston explained that “under our system, the authority attaches to the office, not the human.”

“President Biden has this power because he’s president, not because he’s Joe Biden. And when President Trump was in office, he had the power because he was President Trump, not because he was Donald Trump.”

The office, not the man

So, Trump doesn’t have standing. The office of the presidency does. Executive privilege is a principle designed to protect the presidency, not the person who occupies that office. So, the minute Trump is no longer the president, he loses standing to sue.

If the current president thinks it’s OK to release materials, then it’s OK to release materials. It’s his call. He’s the one who gets to decide whether to invoke executive privilege because he’s, well, the executive. It’s his privilege. Not his predecessor’s.

The same would be true if a Republican were in office. It would be his decision whether to release information kept secret by his predecessor. If it’s in the national interest to do so, he’s not only within his rights, but duty-bound to do so. Getting to the bottom of an attempted insurrection would seem to be very much in the national interest.

That’s the determination Biden made as the current executive.

Trump, to reiterate, is not the executive, but as a private citizen. In order to have standing, he has to prove three things: That an injury will occur, that the injury was directly caused by the action he’s opposing (release of the information), and that it is likely a court will redress that injury.

But if there’s any injury to Trump personally, it will be because he broke the law. That’s not covered under executive privilege, which is intended to protect the presidency, not the man in office. Just ask Richard Nixon, who was the man in office during Watergate. But Trump’s not Nixon. He’s not trying to assert executive privilege while in office to shield potential wrongdoing. He’s trying to do so when he’s out of office.

Plus, he doesn’t just want it to apply to himself and his aides. He wants it to apply to Steve Bannon, who was not in the administration during the time in question. He was then, as Trump is now, a private citizen.

Cheney’s insight

Liz Cheney, a Republican critic of the president, has connected the dots that are there for everyone to see.

“Mr. Bannon’s and Mr. Trump's privilege arguments do appear to reveal one thing, however: they suggest that President Trump was personally involved in the planning and execution of January 6th,” Cheney said.

In other words, Trump is doing the equivalent of taking the Fifth, which shields a potential defendant from saying anything self-incriminating. Everyday citizens can do this. Everyday citizens don’t get to claim executive privilege.

And, like it or not, Donald Trump is an everyday citizen now.

He can’t assert executive privilege because he doesn’t have standing.

Because of this, any judge who sees Trump’s lawsuit come before him has only one real choice, under the law. He or she must bang that gavel, stare Trump’s attorney in the eye, and say, “Case dismissed!”

Stephen H. Provost is the author of three books on the Trump era, the “Trumpism on Trial” series focusing on Trump’s methods, his relationship with the media, and evangelicals’ embrace of him. All three books are available on Amazon.