With no straightforward case tying Trump to violence, Garland took a historically momentous risk.

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The New York Times described the Trump investigation this way: “Department leaders believed that the best way to justify prosecuting Mr. Trump and the Willard [Hotel] plotters was to find financial links between them and the rioters — because they thought it would be more straightforward and less risky than a case based on untested election interference charges.” Investigators’ inability to build a straightforward case tying Trump to the violence offered Garland the option of honorably declining to prosecute. But he didn’t take it.

Instead, he relied on tenuous legal theories to authorize one of the most momentous prosecutions in American history. The reliance on such theories to prosecute a president’s official acts did not sit well with the justices. Roberts’s opinion observes: “Section 371 — which has been charged in this case — is a broadly worded criminal statute that can cover ‘any conspiracy for the purpose of impairing, obstructing or defeating the lawful function of any department of Government.’”

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The chief justice continued: “Virtually every President is criticized for insufficiently enforcing some aspect of federal law (such as drug, gun, immigration, or environmental laws). An enterprising prosecutor in a new administration may assert that a previous President violated that broad statute.”

Had Trump been charged under a well-defined statute for what former attorney general William P. Barr has called a “meat-and-potatoes crime,” the Supreme Court might have been more likely to let the case go to trial without a ruling on presidential immunity — or to tailor immunity more narrowly. But because Trump’s terrible post-election behavior consisted mostly of broadcasting political lies, there was no such crime available. The Justice Department fell back on broad and inchoate charges.

If Garland’s prosecutors were determined to bring a case based on untested laws against a former president, they could have at least drawn up a clear, narrow indictment — perhaps limited to the fake elector slates Trump’s campaign submitted to Congress. But Garland’s prosecutors threw everything into the indictment they could, even alleging that Trump’s threat to remove an acting attorney general was criminal. Roberts was having none of it: “As we have explained, the President’s power to remove ‘executive officers of the United States whom he has appointed’ may not be regulated by Congress or reviewed by the courts.”

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Conservatives such as Harvard Law School’s Jack Goldsmith noted in 2019 that special counsel Robert S. Mueller III had botched his analysis of the president’s power to remove subordinate officials. Smith, the second special counsel to pursue Trump, made the same mistake. That the Supreme Court’s six conservative justices recoiled at that part of the indictment, at least, should have been predictable. It was the only piece they quashed completely — and one wonders, again, how it affected their overall attitude toward the case.

Finally, there was the prosecution’s rush to try Trump before the 2024 election. Starting in late 2023, Smith began to strongly signal that the case had an electoral deadline, telling the Supreme Court that the........

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