'Warning shot': Sandwich guy and other grand jury refusals stir civil revolt against Trump

Grand juries are typically willing to “indict a ham sandwich,” a Republican judge famously said. But recently in Washington, D.C., in the case of a man who allegedly threw a sandwich at an immigration officer, a grand jury declined to indict.

That failed felony indictment and at least six similar cases signal a pattern of resistance to Donald Trump, experts said, citing opposition to what citizens see as overreach by an administration attempting to curb protest.

“The pattern of grand jury refusals indicates an emerging civil jury revolt against Trump-era federal prosecutions,” said Chad Cummings, who teaches law at Florida Gulf Coast University in Fort Myers, Fla.

“This suggests a coordinated resistance not from political actors, but from citizen-jurors who no longer trust the prosecutorial motives behind these charges.”

The wave of failed indictments is "astonishing” and “extremely rare,” said Harold Krent, professor at the Chicago-Kent College of Law at the Illinois Institute of Technology.

Other lawyers told Raw Story such actions are “exceptional” and “very unusual.”

In 2010, the latest year for which figures are available, only 11 times out of 162,000 did a grand jury not return a bill of indictment, noted Nora Demleitner, a former law professor and immediate past president at St. John’s College in Annapolis, Maryland.

To Krent, recent grand jury rejections “reflect the sort of skepticism of people drawn across some sections of the community to the charges brought by the Trump administration.

“They're skeptical about the wisdom or the strength of the cases that are brought in these. They sense an overreach.”

Citizen pushback likely won’t stop there, Krent said, adding: “I absolutely think it is a form of resistance.”

On Thursday, in a case that made it to trial, a Los Angeles protester was acquitted of misdemeanor assault charges brought by a Trump-appointed U.S. attorney over the alleged assault of a border patrol agent. Immigration officials were accused in court of lying about the incident.

‘Really scrupulous’

In D.C., the sandwich thrower was later charged with a misdemeanor. Less than a week later, a D.C. grand jury refused federal charges against a New York woman accused of threatening Trump.

Two days after that, D.C. U.S. Attorney Jeanine Pirro dropped federal felony charges against a man who allegedly threatened Trump. The man said he has disabilities and was intoxicated, according to WUSA9.

Discussing the case of the New York woman, Pirro claimed: “This is the essence of a politicized jury.”

She continued: “The system here is broken on many levels. Instead of the outrage that should be engendered by a specific threat to kill the president, the grand jury in D.C. refuses to even let the judicial process begin. Justice should not depend on politics."

Demleitner countered that jurors tend to be “really scrupulous,” adding: “They're really trying their hardest. They don't go in there with this idea of, ‘I'm not going to follow the law.’

“But then they see things differently and really struggle with that, so I think I would always want to assume goodwill on the part of a grand jury, especially because grand juries don't need unanimity.”

The prosecutor “runs the entire system” when it comes to grand juries, with no defense lawyer present, so grand juries “only hear one side” of any case, Demleitner said.

When grand juries refuse to indict, it can be because the prosecutor was unprepared, witnesses were doubted, or charges seemed overblown, Demleitner said.

“The problem is it's secretive, so we really don't know exactly what these grand juries are thinking,” Demleitner said.

“Some of them just seem to be cases that shouldn't have been charged, and I think there's a lot of people who say they wouldn't have been charged under a different administration.”

In early September, Pirro failed to get grand jury approval three times in a case related to an alleged assault of an FBI agent and an immigration officer.

“It should be a warning shot to the federal government to understand that they're not just going to go through with these cases and nobody will stand in their way,” Demleitner said.

‘A sword but also a shield’

Grand juries have long provided checks and balances on executive authority, Demleitner said.

“Pre-the creation of the United-States, the grand juries were actually really these amazing historical tools of rejecting, basically, the power of the king,” she said.

Turning back to the present, Demleitner pointed to other “no bill” decisions. Washington, D.C. grand juries have “rejected indictments in mandatory-sentence drug cases because they felt the sentences disproportionate to the offense.” Cases related to immigration protests in LA in 2018 also failed to produce indictments.

U.S. Attorney Jeanine Pirro speaks during a press conference. REUTERS/Annabelle Gordon

Grand jury processes can be “really abused,” Demleitner said, such as when “grand juries did not indict members of the KKK when they lynched Black people, in the few cases where they seemingly went ever before a grand jury.

“It's not an unmitigated good for grand juries to do that, and the problem really is, we have no idea what the grand juries see and hear in the vast majority of cases, and so it's very hard to judge what actually went on in that room.”

To Cummings, recent grand jury refusals likely relate to jurors perceiving infringement on First Amendment free speech rights, the “holy grail of our civil liberties.

“It's not a Republican thing. It's not a Democrat thing. It's a free expression thing. It is a reluctance … to curtail those constitutionally protected civil liberties.”

Grand juries are “a sword but also a shield to protect private citizens like you and me from those overzealous, and I think in this case we can safely say politically motivated prosecutions,” Cummings said.

“Anytime we're applying felony charges to an expression of speech, that makes even lay people sit up and take attention.”

Krent said that as the Trump administration continues to clash with protesters and media over immigration enforcement, prosecutors can expect to see cases of jury nullification: when jurors return a not guilty verdict based on “their conscience,” even if they think the defendant broke the law.

“Jury nullification is the last protection a private citizen has against the overreach of the federal government,” Cummings said.

Nullification occurred under Prohibition, when jurors refused to convict defendants for alcohol-related offenses, and under slavery, when northern juries refused to convict escaped slaves and those who helped them, Krent said.

David Schwartz, an attorney who formerly worked in the grand jury bureau of the Brooklyn District Attorney’s Office, said jury nullification can be “concerning,” describing it as “disregarding the law and deciding the case the way you want to.”

“We're seeing in front of our eyes the politicization of our criminal justice system, and it's unfortunate,” Schwartz said.

Cummings argued that many federal cases under the Trump administration are themselves politicized, especially compared to the last Democratic administration, under Joe Biden.

“These people in the grand jury are smart enough to figure out, ‘Hey, this is political. We weren't seeing this before. We're seeing it now. Hmm, what's changed?’”

‘Irony is brutal’

While recent grand jury refusals have occurred in places that lean Democratic, Krent said, “the phenomenon could arise in red states as well.

“A cross-section of the citizenry are asked to look at the facts, look at the law, and determine whether there's a sufficient cause to bring charges. I think some will be skeptical.”

Trump’s rhetoric around “prosecutors are corrupt, the media is fake, and the justice system is rigged” is backfiring, Cummings said.

“Trump broke the public’s faith in institutional fairness, and now the system cannot even protect him.

“Enough people believed him that now, when he actually needs those systems to function impartially on his behalf, they will not. The irony is brutal.”