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Goodbye to Special Counsel Investigations of Incumbent Presidents

LawFare: “The Supreme Court’s decision in Trump v. United States will remain the subject of intense debate and disagreement for decades to come. The arguments will understandably focus on the precise issue that was before the Court: the immunity that a former president may enjoy from criminal indictment or prosecution. However, with considerable consequence, and little notice in the commentary today, the Court slipped into a single footnote one additional conclusion, relating to the protections of presidents while in office. It effectively shut the door on any further questions about the controversial Department of Justice legal opinions finding that presidents were immune during their terms from any such prosecution. In doing so, the justices put that immunity on a firmer constitutional case law footing, rather than on mere executive branch say-so. This move prepares the grounds for an even more aggressive Office of Legal Counsel (OLC) immunity opinion in a future administration that is inclined, or highly motivated, to go in this direction: extending in-office immunity to investigations and not only prosecutions. And this decision has ramifications beyond the terms of office during which this immunity attaches…”

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