The Supreme Court on Wednesday granted review of former President Trump’s claims of presidential immunity. (Sean Rayford/Getty Images)
Smith’s "primary fight for the last few months has been to secure a trial before the election," Turley said, adding that if the trial is after the election, "there might not be a trial."
Turley said that, should a decision come down from the Supreme Court as late as June, between a "host" of pre-trial motions and other procedural elements at the district court level — even if the district court were as "motivated" as Smith to get a trial scheduled before the election — the earliest a trial could start is the fall.
Turley noted the Department of Justice has a longstanding practice of avoiding any prosecutorial action that could be perceived as political within a certain time frame before the election.
A Justice Department spokesperson declined to comment.
The Justice Manual states, "Federal prosecutors and agents may never select the timing of any action, including investigative steps, criminal charges, or statements, for the purpose of affecting any election, or for the purpose of giving an advantage or disadvantage to any candidate or political party.
"Such a purpose is inconsistent with the Department’s mission and with the Principles of Federal Prosecution."
While the DOJ can make timing requests of the court, it's ultimately up to a judge to set the court's calendar.
The Supreme Court (AP Photo/Jacquelyn Martin)
"So, this will force the court to set down some precedent. It's very likely that some of the justices would like to see greater acknowledgment of immunity for the president, for a future president."
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Jim Trusty, former legal counsel for Trump and a former federal prosecutor, said "the Trump team argument that he has absolute unqualified immunity while he's in office is not a winner."
"But I do think that there's a strong possibility that the court confirms that immunity protects the president, acting even in the furthest reaches of his responsibilities. That could well be enough to win the day on both Jan. 6 and Mar-a-Lago classified documents cases," Trusty said.
The Justice Department declined to comment.
Brianna Herlihy is a politics writer for Fox News Digital.
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