Special counsel Jack Smith’s latest brief to the Supreme Court on Donald Trump’s immunity claim strives to ensure that the justices’ decision puts the Jan. 6 trial back on track, ending the detour the former president has extracted from a weak argument.

The bulk of the brief Smith filed Monday is a methodical rejection of Trump’s far-fetched claims to immunity from prosecution for attempting to overturn the 2020 election. Smith and his Supreme Court specialist, Michael Dreeben, closely follow the D.C. Circuit Court of Appeals’ persuasive, bipartisan opinion contradicting Trump on all points.

In the last few pages, however, Smith argues for the particular exigency of this case, noting that “even if a former president has some immunity from federal criminal prosecution for official acts, this prosecution should proceed.”

Smith contends that Trump’s attempt to thwart the peaceful transfer of power is a paradigmatic example of conduct that can’t be immunized. He describes what’s alleged against the former president as “a private scheme with private actors to achieve a private end” — namely, staying in power by fraud.

In what may be the brief’s most consequential phrase, the special counsel insists that the case “should be remanded for trial” on the ground that whatever immunity the Constitution might provide a president, it can’t shield Trump from this prosecution.

That would be dramatically different from the order that typically concludes a Supreme Court opinion. The justices normally set out governing principles of law and leave it to the lower courts to apply them to the facts, ordering a case “remanded for proceeding consistent with this opinion.”

The practical difference between such a standard remand and Smith’s far more unusual proposed remand for trial may sound subtle. But it’s pivotal, as Smith and dozens of friend-of-the-court briefs recognize.

Smith’s suggestion is a preemptive strike against an opinion that would leave room for yet another trip up and down the federal court system before a trial can begin, an opening Trump would surely exploit for further delay.

The all but certain ultimate answer to Trump’s immunity claim is no: Under no plausible analysis will any court find that his conduct can’t be prosecuted. But if it takes even a relatively quick series of further appellate reviews to nail that point down, it will probably squander any remaining possibility that this crucial trial will occur before the election.

The reason that the nature of the remand is a distinct risk in the case has to do with the question the court crafted for argument during the 13 days it took to act on Trump’s petition for review. That extended period gave rise to speculation that some justice was writing a dissent. But it seems the justices were instead engaged in negotiating and formulating the question to be considered.

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