The Supreme Court heard oral arguments on Thursday about whether former President Donald Trump is immune from prosecution on charges of attempting to overturn the results of the 2020 election, as Special Counsel Jack Smith has accused him of doing.
A majority of the Supreme Court justices appeared to agree with Trump’s attorneys’ arguments that a president does enjoy some level of immunity that continues past the term of office. Conservative Justice Samuel Alito was one of them, citing the “old saw about indicting a ham sandwich” while questioning the government’s Michael Dreeben.
“[T]his case will have effects that go far beyond this particular prosecution. So moving on to the second level of protection that the D.C. Circuit cited, federal grand injuries will shield former presidents from unwarranted indictments. How much protection is that?” Alito asked.
Dreeben replied by arguing that “some fears about groundless prosecutions aren’t supported by evidence” and that “they’re not going to get out of the starting gate.’
“I mean, there — there’s the old saw about indicting a ham sandwich,” Alito quipped. “I mean, you had a lot of experience in the Justice Department. You come across a lot of cases where the U.S. attorney or another federal prosecutor really wanted to indict a case and the grand jury refused to do so?”
“There are such cases,” Dreeben replied.
“Are there?” Alito pressed, before adding, “Every once in a while there’s an eclipse, too.”
The “indict a ham sandwich” phrase reportedly originated in January of 1985 with former Chief Judge of New York State Sol Wachtler in an interview with the New York Daily News. Wachtler told the publication that district attorneys have so much influence on grand juries that “by and large” they could get them to “indict a ham sandwich.”
“A month later, the New York Times noted that Wachtler believed grand juries ‘operate more often as the prosecutor’s pawn than the citizen’s shield.’ That belief—that prosecutors can get grand juries to do whatever they want them to do, will sound familiar” to some, Slate reported.
The case is Trump v. United States, No. 23-939 in the Supreme Court of the United States.
