Trump at Supreme Court: Ham sandwiches and solar eclipses - Justice Alito has questions

Dan Morrison, USA TODAY
Updated ·2 min read

During Supreme Court arguments thick with references to hypothetical murders, military coups, and bribery, Justice Samuel Alito on Thursday aimed for the stars – and the deli counter.

Lawyers for Donald Trump have asked the justices to rule that former presidents are immune from prosecution for any official act they commit in office, with a wide definition of what makes for an official act.

During historic proceedings on Thursday, several justices tucked into extreme examples of what might constitute official conduct under Trump's interpretation: Ordering the assassination of political rivals, military takeovers, bribery?

But Alito approached the immunity question from another angle, asking if – without legal right to immunity – a former president would be left open to malicious prosecution.

More: Supreme Court immunity case: Live updates of oral arguments in Donald Trump's fight for immunity

Justice Samuel Alito asked if former presidents should be left to the mercy of prosecutors.
Justice Samuel Alito asked if former presidents should be left to the mercy of prosecutors.

Alito asked Justice Department attorney Michael Dreeben if a former president should be left to the mercy of prosecutors, noting an old saying on the pliability of grand juries: That grand jurors would indict a ham sandwich if a prosecutor asked them to.

Alito asked Dreeben if he knew of a single case in which a federal prosecutor had asked a grand jury to indict a suspect “and the grand jury refused to do so.”

Without citing examples, Drebeen said it had happened.

“Every once in  a while there’s an eclipse too,” Alito replied. No prosecutor wants to indict without sufficient evidence, Drebeen said, because the case would end in an acquittal.

One ex-prosecutor stood up for the integrity of grand juries.

“I will tell you it is an absolute myth that grand jurors are pushovers,” Diana Florence, a former official at the Manhattan district attorney's office, told USA TODAY. “My experience is that they asked tough questions that helped expose holes in my cases and made the ultimate indictments stronger.”

Justice Department special prosecutor Jack Smith has charged Trump with plotting to overturn his 2020 loss to President Joe Biden. Trump has asked the Supreme Court to rule he’s immune.

This article originally appeared on USA TODAY: Trump Supreme Court: Justice talks ham sandwiches and solar eclipses

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