While we watch the convention of vibes, thus far devoid of any substance beyond “she’s not Trump” and prosecutors “know that type” of convicted felon, as they’ve claimed for generations when convicting the innocent and guilty alike, one name has gone unuttered in Chicago or the New York Times.

Former President Donald Trump could still face a criminal trial for allegedly conspiring to overturn the 2020 election – but say that the odds of any trial starting over the next year depends on the results of the election, the speed of pre-trial hearings examining the extent of Trump’s immunity and whether special counsel Jack Smith moves to narrow the indictment.

Jack Smith? Sound vaguely familiar? He’s the guy prosecuting the January 6th case against Trump in Washington and the classified documents case in Florida, where he chose the venue and thus, the judge. And then the Supreme Court ruled in United States v. Trump, leaving Judge Tanya Chutkan to figure out what to do with that decision.

Smith earlier this month asked for a three-week extension to respond to Chutkan’s scheduling order for pre-trial hearings.

South Texas College of Law Houston professor Josh Blackman called that move “significant.”

“He could have been ready to go on day one, but they’re still not sure how they’re going to proceed,” Blackman said. “I think that does make a difference.”

While it’s unclear how Smith could have anticipated the Supreme Court’s convoluted and somewhat incoherent ruling, a ruling that frankly no one anticipated even if it seemed fairly clear that the president would be given some degree of immunity of necessity, Josh’s point is that Smith’s job was to be ready to proceed no matter what the circumstances if he wanted to pursue the prosecution. Delay was the enemy. And yet, delay was what he asked for.

If Smith was serious about pursuing the prosecution, was there a way to plow forward?

Stanford Law School professor Michael McConnell, a former federal appellate judge and a senior fellow at the conservative think tank Hoover Institution, said “the case could move along fairly expeditiously” if Smith limits the scope of the indictment to Trump’s private conduct.

“It really all depends on Jack Smith,” McConnell said. “If he wants to throw in the kitchen sink, as he has done so far, then there’s going to have to be arguments and probably an appeal.”

Is the line between private and official conduct sufficiently clear that Smith would be able to pare down the allegations to include only those that clearly survive the Supreme Court’s ruling?

He noted that the Supreme Court’s ruling did not lay out clear-cut rules for what constitutes official and private versus unofficial conduct.

“But it seems to me, it was clear enough,” he said. “And much of Mr. Trump’s conduct, I think, appears private and non-official, and I’m referring here particularly to anything that he had to do, anything he did in an attempt to persuade either state legislatures or state election officials or electors to violate the law.”

The president of the United States has nothing to do with the way states manage their elections. There is no official duty that relates to states certifying the electoral college vote. The best argument proffered is that the president has an official interest that state elections be fair and the counts be accurate, but to the extent that’s an official concern of the president rather than of a candidate, it’s vindicated in court where Trump failed miserably, not in telephone calls imploring state officials to “find” more votes.

But McConnell said such calls to state and local election officials don’t fall into that bucket.

“The president has zero authority with respect to the administration of the election,” McConnell said. “He’s quite clearly communicating in his capacity as the candidate.”

And what of Trump’s attempt to get Vice President Mike Pence to violate the Constitution?

McConnell said Trump’s communications with Pence might be the “hardest, most gray area.”

Still, he said those interactions aren’t “that important” relative to Trump’s indictment as a whole.

“It seems to me that if Smith wants to move forward, that he would not give up very much by stripping the indictment of the arguably official conduct,” McConnell said.

It would prove unsatisfying to many of those who despise Trump to let him get away with a single act they believe was criminal, an understandable feeling. But as a practical matter, a trial and conviction on Trump’s call to Georgia Secretary of State Brad Raffensperger, one of the clearest acts of impropriety in which Trump engaged, would still be a serious conviction addressing the core issue of Trump’s refusal to accept that he was a pathetic loser and his effort to overturn an election and prevent the peaceful transfer of power.

Notably, McConnell is not of the view, when he provides a road map for prosecution, that Smith should narrow the indictment and proceed with all due haste.

“It’s almost an abuse of power on his part, in the midst of a presidential election to pursue a case when there is no non-political reason to hurry, and the Department of Justice has a long standing policy of not timing prosecutions in a way that would affect an election,” McConnell said. “We’ll see what he does, but I think it’s quite improper to move forward quickly, but I think he could if he wanted to.”

Attorney General Merrick Garland, the man who would be justice, dithered for two years  before handing the file off to Smith. And the case would have been tried had Trump’s lawyers not made motion upon motion, then appeal upon appeal, to delay the prosecution until it was in the midst of a presidential election. While McConnell may be right that there is no law or procedure mandating that a trial be conducted before an election, the timing is largely Team Trump’s fault, so they can’t be heard to complain that we’re a mere 75 days to an election.

The only question now is what Jack Smith will do in those 75 days. The answer may be nothing. You can’t blame Trump for that.

H/T Hal