How this will play out in the Jan. 6 prosecution is to some extent for U.S. District Judge Tanya Chutkan to try to figure out, with Trump challenging every move she makes along the way. The court emphasizes that distinguishing “the President’s official actions from his unofficial ones can be difficult” and may necessitate a “fact-specific” inquiry into their context (not including the president’s motive).

But the court drops some very strong hints about which aspects of the prosecution are precluded. It essentially says that Trump’s alleged efforts to level false accusations of election fraud in Georgia with the aid of a Justice Department functionary are off-limits. That’s because the charge implicates the president’s official power to investigate and prosecute crimes.

The opinion also strongly suggests that the alleged plot to strong-arm Vice President Mike Pence into violating the Constitution may be protected because it pertains to the interactions of the executive branch’s top two officials.

And the court seems to want to give a pass to Trump’s incendiary rhetoric near the Capitol on Jan. 6 on the basis that communication with the public is part of what the president does.

The only aspect of the indictment that the court seems disposed to preserve is the alleged extensive effort to set up fraudulent slates of electors. Even there, however, the court prescribes a detailed inquiry that puts the burden on special counsel Jack Smith’s team to counter Trump’s argument that his conduct was official “because it was undertaken to ensure the integrity and proper administration of the federal election.”

Even if Trump loses the election and the case is allowed to proceed beyond this year, it will require more time-consuming legal combat. Every aspect of the application of the court’s opinion to the case could be appealed to the D.C. circuit and the Supreme Court.

And where does it all come from, this fundamental reordering of our tripartite system of government and the principle — to which the court continues to give lip service — that the president is not above the law?

The answer is no more than the court’s view that the president must be able to take bold and energetic action without worrying about subsequent criminal prosecution. The justices are not, strictly speaking, interpreting any provision of the Constitution but rather applying their notion of what makes for an effective president. The conservative majority is essentially grafting its political science principles onto constitutional structure and using them to drive a truck through the principle of equality before the law.

The majority dismisses the liberal dissenters’ insistence that the decision puts the president above the law as amounting to “ignoring the Constitution’s separation of powers and the Court’s precedent and instead fear mongering on the basis of extreme hypotheticals about a future where the president ‘feels empowered to violate a federal criminal law.’ ”

But there is nothing fearmongering, unrealistic or extreme about those worries. They concern a reality that is right before the justices’ eyes. They have chosen to ignore it, ensuring that justice for the most serious assault on the Constitution in our history will be much delayed and largely denied.

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

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