Has the Supreme Court made the Jan. 6 case against Trump impossible?

Last Friday, Judge Tanya Chutkan granted Special Counsel Jack Smith’s request for an extension in the Jan. 6 election subversion case against former President Donald Trump in light of the Supreme Court’s decision manufacturing criminal immunity for former presidents.

Smith, who now has until Aug. 30 to lay out his recommendations for how to proceed, told Chutkan that more time is needed for “consultation with other Department of Justice components.”

It’s possible that Smith is merely checking the boxes of DOJ bureaucracy. What is absolutely certain, however, is that it is a daunting project to pick through the high court’s immunity ruling to divine a strategy for salvaging the prosecution.

Writing for a 6-3 majority in Trump v. U.S., Chief Justice John Roberts explained that “the indictment alleged that after losing [the 2020] election, Trump conspired to overturn it by spreading knowingly false claims of election fraud to obstruct the collecting, counting, and certifying of the election results.” The indictment contains four counts: conspiracy to defraud the United States, conspiracy to obstruct an official proceeding, obstruction of and attempt to obstruct an official proceeding and conspiracy against rights (i.e., the right to vote).

The charges are relatively modest and prominently exclude claims that Trump incited an insurrection under federal law. Smith’s prosecutorial choices likely indicated a strategy to proceed to trial swiftly. That plan failed pretty spectacularly, thanks to the Supreme Court.

Not only did the court indefinitely delay the case by taking up Trump’s breathtaking claim of absolute immunity in the first place, but its immunity opinion now demands a seemingly endless array of questions that Chutkan must unpack. It could take months, if not years, to resolve them all definitively on appeal. Yet that must happen before a single juror can be sworn in.

And as Justice Ketanji Brown Jackson stated in her dissenting opinion, it’s the Supreme Court majority — and not the Constitution or federal statutory law — that will have the final say on what, if anything, Trump can be held liable for. She wrote: “In essence, the Court has now imposed its own preclearance requirement on the application of Congress’s laws to a former president alleged to have committed crimes while in office.”

For both Smith and Chutkan, the threshold “test” for the court’s newly minted doctrine of presidential criminal immunity involves a bunch of steps.

For every allegation in the indictment, Chutkan must first decide whether a particular action taken by Trump involved one of the president’s “core” powers. But according to the majority, “core” powers are not just confined to what’s set forth expressly in Article II of the Constitution. Roberts also listed the president’s power to remove federal officers and to recognize foreign powers as “core,” but neither of those are in the actual text of the Constitution. So step one is a tricky wicket.

If a particular action was not “core,” Chutkan must then decide whether it was “official.” There are even fewer hard-and-fast rules for that. The majority offers this: An unofficial act is one that is “manifestly or palpably beyond [the president’s] authority.” If it is not manifestly or palpably beyond his authority, then it might be immune from prosecution, and even from having any evidence of that action ever presented to a jury. It appears hard to imagine that anything remotely within a president’s vast array of daily tasks is “manifestly or palpably” not within his duties.

Third, if an action is determined to be within the “outer perimeter” of what is “official,” then it gets “presumptive” immunity. This means that Smith’s team cannot consider that action for purposes of making a criminal case unless it can show that would pose “no dangers of intrusion of the authority and functions of the executive branch.”

If Smith can overcome the presumption of immunity by proving that the threat of prosecution over that act would not pose a danger of intruding on the president’s functions, then he can use it in his prosecution. Again, this inquiry must proceed fact-by-fact.

The majority pointed to five categories of evidence that are particularly important to the Jan. 6 case against Trump: public statements about the election; communications with senior Justice Department officials about investigating phony fraud allegations; communications with state officials about “finding” elusive votes for Trump and other things; communications with Vice President Mike Pence and members of Congress about thwarting the process for counting the Electoral College votes in Biden’s favor, as the law required; and directing the organization of fake slates of electors.

The majority stated that all discussions with the Justice Department and select discussions with Pence about “official responsibilities” are official. Smith will have to walk through each of these conversations and persuade Chutkan that using them at trial would not create a danger of intrusion into presidential functions — whatever that means.

In her dissenting opinion, Justice Sonia Sotomayor summed this step up as deciding whether the evidence would increase “a President’s anxiety over prosecution.” Of course, any threat of prosecution over anything one does could create anxiety. So this hurdle may lead to zero evidence getting before a jury if the Supreme Court ever gets its hands on the case again.

As for public statements about the election, conversations with Pence in connection with his Senate duties (versus his vice presidential duties) and conversations with private parties and state officials about fake elector schemes and other efforts to overturn the election, the majority was unwilling to call anything “unofficial.” Each and every snippet of information must therefore go through its vague yet arduous set of questions, virtually all of which are unanswerable with any confidence based on the majority’s opinion.

The court doesn’t say whether these showings can be made using actual evidence. Smith will probably ask for an evidentiary hearing, and Trump will probably claim that an evidentiary hearing would put into the record information about official acts that the court put off limits. That question, in and of itself, could be litigated up through an appeal to the Supreme Court.

When the dust settles and the discarded facts lie on the cutting-room floor, Smith will have to decide if there’s enough evidence left to prove a crime beyond a reasonable doubt. It makes sense that he needs a few more weeks to mull it over.

Kimberly Wehle is author of “How to Read the Constitution — and Why.” Her forthcoming book, “Pardon Power: How the Pardon System Works — and Why,” is out in September.