They settled on a somewhat convoluted construction asking “whether and if so to what extent” a former president enjoys immunity from criminal prosecution for potentially official acts. That strongly suggests that at least some of the justices are concerned that however weak Trump’s claim to immunity might be, presidential immunity might be required in some cases. They may have in mind an attempted prosecution of a president for, say, bombing an adversary during a war or refusing to crack down on unlawful immigration. And they may want to cover that ground in the court’s first ever consideration of criminal immunity even if it doesn’t apply to Trump.

Whatever room the justices leave for theoretical presidential immunity, you can be sure that Trump will aver in the trial court that it precisely describes his case. Presumably U.S. District Judge Tanya Chutkan and the D.C. Circuit would make quick work of it, but in the federal courts, quick work can take a couple of months.

Given the importance of the trial schedule, the key practical question is whether the court focuses solely on Trump’s case or endorses immunity in other instances. Smith’s gambit is a fallback that would let the court order the trial to proceed even if its opinion extends to broader principles of immunity.

The oral argument could also expose a fundamental divide among the justices about potential immunity unrelated to Trump’s conduct.That would suggest that the court will issue multiple opinions after engaging in a back-and-forth that would itself likely eat up several weeks.

The amicus briefs in the case divide along similar lines. The most prominent ones in Smith’s favor advise the court to simply affirm the D.C. Circuit’s rejection of Trump’s claim without venturing into possible instances of immunity that are not remotely presented here. The briefs on Trump’s side tend to argue for some immunity in some cases, a result that would likely give rise to a more complicated remand.

To date, the court has not seemed very sensitive to the political imperative of a verdict that gives voters a piece of critical information before the November election: whether one of the candidates is guilty of a scheme to subvert the last one. That is in stark contrast to the court’s obvious speed in deciding Trump’s eligibility for the Colorado ballot before the state’s primary. And the court has shown similar haste in politically supercharged cases before, among them Bush vs. Gore.

The justices’ apparent indifference to the need for speed and clarity in this case is a shame. If they continue merely proclaiming the law as usual, letting the political chips fall where — and, more importantly, when — they may, it will be an unnecessary boon to Trump and a loss for the country.

____

Harry Litman is the host of the“Talking Feds” podcast and the Talking San Diego speaker series.@harrylitman

©2024 Los Angeles Times. Visit at latimes.com. Distributed by Tribune Content Agency, LLC.