The Biggest Winner in the SCOTUS Immunity Hearing? Ham Sandwiches
And other maddening thoughts from the Gates of Hell
Amid the surrealness of grown men and women pondering over the possible legality of a President staging coups or killing his political rivals, perhaps the most demoralizing aspect of the presidential immunity hearing at the Supreme Court was the mundane realism of a ham sandwich.
As the old joke goes: “A grand jury would indict a ham sandwich, if a prosecutor asked them to”. Or something like that. Basically, it’s pointing out that it’s easy to get indicted, and a good prosecutor could indict anything they want if they tried hard enough. (For what it’s worth, this originated from NY Court of Appeals Chief Justice Sol Wachtler in 1985, who himself was indicted).
It’s definitely a clever joke. A biting commentary on the cracks in our legal system. Something you can share a laugh about with your co-workers standing around the proverbial water cooler. Although it perhaps is true that the perceived wittiness of the joke is directly proportional to the criminal tendencies of the listener.
All of which makes it even more depressing that Supreme Court Justice Samuel Alito used this ham sandwich quip to express skepticism about our justice system being adequate to reign in highly prejudicial and zealous prosecutors from prosecuting ex-presidents.
Really? A long-time steward of the esteemed U.S. Supreme Court, the beacon of judicious thinking, actually used the colloquial ham sandwich analogy in a Supreme Court hearing? Yes, he did. He treated the Supreme Court stage as the largest water cooler in the world.
I mean, I’m all for regular common sense being applied at this level, but considering it’s rarely applied here in the first place, why would this type of layman thinking suddenly be prominent in the mind of a Supreme Court Justice? This is the same guy that quoted 17th century British witch hunters when justifying the invalidation of Roe v. Wade. If he had just said “Abortion is murder” in that ruling and left it at that, it would have made more sense than the convoluted activism he engaged in.
Could he not have come up with an actual real world historical example to back up his concern? Nothing from 14th Century Prussia where an overzealous politically motivated prosecutor tries to have a political rival thrown in jail?
On top of that, the idea that a member of the highest level of the justice system doesn’t trust that very system to work appropriately to prevent back-and-forth retaliatory political prosecutions is startling. Even if it is somewhat easy to indict someone, you still have to have evidence in order to do so. The standard in a Grand Jury is lower than for that of a conviction at trial, so it makes sense that it would be relatively easy to get an indictment. But there generally still has to be a crime that was committed, or at least highly questionable behavior conducted.
On the other hand, a crime has to be proven beyond a reasonable doubt at trial, and there’s ample opportunity to appeal several levels above the trial court if a conviction occurs. Given the levels of checks within the system, do we really need to be that concerned about prosecutors indicting for no reason and throwing their rivals in jail? In fact, the best recent examples of this type of zealous prosecutions being thwarted are from Trump’s own justice department appointees.
For example, the attempted prosecutions of Michael Sussman and Igor Danchenko were largely the result of political animus of Trump, who was trying to put into question the origins of the Russia investigation. These prosecutions were carried out by his enabling henchman Attorney General Bill Barr and Special Prosecutor John Durham.1 These cases were successfully indicted, but ended in acquittals at trial. While the evidence required to indict was there, the evidence to convict wasn’t. The system worked as it was supposed to in the face of attempted political retribution.
So there you have it. A Supreme Court Justice appears to not trust his own justice system to refrain from mindless political prosecutions. Ham sandwiches everywhere will take comfort in this support and can breathe a sigh of relief.
The unbearable weight of obliviousness
Another disturbing trend that continued in this hearing is how oblivious many of the justices seem to be towards reality and the state of the nation. I don’t expect them to take into account public opinion when making their rulings. But if they don’t, they should forfeit the right to be critical when public opinion moves against them.
The idea that they can complain about their news coverage, or their legacy, or their insanely low approval ratings, and then proceed to move solidly against the modern sensibilities of the country is laughable.
Just in Trump’s immunity hearing, there are several examples that stand out as complete affronts to the typical concerns of the country:
Justice Clarence Thomas’ presence in the hearing, given that his wife was literally involved in the facts of the case
Self-proclaimed “originalists” or “textualists” like Neil Gorsuch talking about being “concerned about the future uses of criminal law” and assuming they are “writing a rule for the ages”, or Alito lamenting that presidents are in a “peculiarly precarious position”
Justice Alito feeling totally at ease about the prospects of Seal Team 6 rejecting orders from a president to assassinate political rivals or to start coups due to their illegality, but terrified about the prospects of our legal system breaking down in the face of overzealous prosecutors
Wasn’t the promise of a conservative court to tamp down on “judicial activism” and just call “balls and strikes” while refraining from being a participant in the dispute?
In the past two decades of the Roberts Court we’ve been overrun by overturned precedents and creations of policies that were never legislated. It’s been, frankly, a judicially activist court. So how is it possible that they make no connection to their overactive behavior and approval rates plummeting?
I don’t know the answer, but I do know that the country is slowly being crushed by the weight of their obliviousness. Apparently, much more slowly than their approval ratings.
Michael Dreeben lulled me to sleep, which is probably a good thing
I started listening to this hearing with high energy. I was on the edge of my seat through the first two thirds, through all of the arguments and questioning of Trump’s lawyer John Sauer and the first part of the government’s lawyer, Michael Dreeben.
Perhaps Sauer’s irritating voice grated at my nerves so much that I had no choice but to stay alert, but I found myself drifting away at time, and even getting drowsy when Dreeben was speaking. But it wasn’t just when he was speaking. The tone of the hearing overall definitely took a more relaxed and thoughtful direction during Dreeben’s time, on the part of not just him but all the justices that spoke, including the conservatives.
I’m not a legal scholar; many of the intricacies of the law brought up during these hearings go over my head (except for ham sandwich references). But I can follow the general ideas and get a feel for how things are going. It seemed that Dreeben was assuring the justices constantly that there’s a way out of this case that can make sense. He was doing his version of laying them down in bed and tucking them in for a nice long comforting rest while singing a lullaby.
Conservative justices that appeared to support military coups during Sauer’s time, seemed to be more thoughtful and engaged with Dreeben. After the first third of his time, which was more contentious, the last two-thirds were markedly more relaxed and contemplative. This has to be a good thing, and I am hopeful it will be reflected in the final decision.
After all, presidents can’t really be immune from staging coups and killing their political rivals, right?
Right?
Both of these trials began and ended during the Biden Administration, but the investigations started during Trump’s administration, and they were conducted fully by Trump/Barr Special Counsel appointee Durham. It was understood at the time of the appointments that the goal was to smear the origins of the investigations into Trump’s questionable relationship with Russia. Many thought Durham was respectable and wouldn’t engage in such political activity, but based on his record at trial, it is apparent he was overreaching.