Emily Berman (University of Houston Law Center) has posted The Uninvestigable President: Executive Accountability after Trump v. United States and Trump v. Slaughter on SSRN. Here is the abstract:
Presidential accountability depends on information. Elections, impeachment, prosecution, and public judgment all require facts. And those facts are generated by a set of overlapping investigative mechanisms, including career investigators across the executive branch, inspectors general, and congressional committees, each capable of surfacing executive misconduct through distinct legal authorities and institutional incentives. Trump v. United States and Trump v. Slaughter threaten that architecture by weakening both internal executive branch investigation and external congressional scrutiny of executive action.
Formally, Trump v. United States concerns presidential immunity from criminal prosecution, while Trump v. Slaughter concerns the president’s removal power. Their joint significance for executive accountability, however, extends far beyond either doctrine. This Article provides the first sustained account of how Trump and Slaughter together restructure the government’s investigative architecture and threaten to produce an uninvestigable president. Trump insulated the president from the consequences of investigation; Slaughter consolidates his control over those who conduct it.
Central to Trump’s impact is its doctrinal ambiguity—about the removal power, presidential authority over investigations and prosecutions, and the meaning of the Take Care Clause. Slaughter only partially resolved the removal issue, leaving open the question of how far its logic extends. When Trump’s remaining ambiguities are resolved in favor of presidential authority—the executive branch’s consistent practice—the result is a president with greater control over the fact-producing institutions that determine whether executive misconduct becomes visible at all.
The post-Trump/Slaughter president thus wields investigative authority as both sword and shield: able to direct investigations of others while stifling investigation of himself. Inside the executive branch, the decisions undermine prosecutorial independence and enable weaponized enforcement. Outside it, they strengthen the executive’s ability to resist congressional investigation. A president who controls the production of information controls, in a meaningful sense, accountability itself.
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