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A D.C. jury acquitted Sean Dunn of assaulting an officer on Thursday, delivering another embarrassing setback to the Trump administration’s effort to punish Washingtonians who oppose its crackdown on the city. Dunn—aka Sandwich Guy—became a folk hero in August after hurling a sub at an officer to protest President Donald Trump’s deployment of federal forces in the District’s streets. His acquittal comes on the heels of many similar humiliations for the administration: D.C. grand juries have consistently refused to indict protesters arrested on exaggerated charges of violence, while criminal juries have declined to convict those whose cases actually make it to trial. This skepticism toward the government’s overzealous prosecutions shows that while Washingtonians are denied full self-governance, they can still make their voices heard one verdict at a time.
On this week’s Slate Plus bonus episode of Amicus, co-hosts Dahlia Lithwick and Mark Joseph Stern discussed the Dunn case and what it reveals about meaningful, enduring resistance to Trump’s abuses of power. A preview of their conversation, below, has been edited and condensed for clarity.
Dahlia Lithwick: This is one of those things that looks lighthearted, but it’s a big, huge deal. The guy who yeeted a sub at a federal agent is, in fact, not going to be guilty of anything.
Mark Joseph Stern: This has given me more hope than almost anything that has happened over the last 10 months. As a Washingtonian, it made me want to stand up and cheer. The acquittal shows that this was extraordinary federal overreach and a vindictive prosecution. To see 12 Washingtonians bravely stand up to that—it was one of the greatest acts of resistance to the regime that you could imagine.
That’s because this entire case is, in some ways, really all about Donald Trump’s “takeover” of D.C. Back in August, Trump “surged” federal officers from ICE, CBP, the FBI, and other agencies and sent National Guard troops into the District without our consent. At the outset, Sean Dunn threw a Subway sandwich at a CBP officer—as prosecutors put it, at “point-blank range.” It hit the bulletproof vest on his chest. And D.C.’s U.S. Attorney Jeanine Pirro tried to make an example of him by charging him with felony assault of a federal officer.
But a grand jury refused to indict Dunn, which was shocking: As we all know, a grand jury will typically indict a ham sandwich, but it turns out a D.C. grand jury won’t indict the guy who threw the sandwich. That appeared to be a pretty clear case of grand jury nullification, which is exceedingly rare; federal grand juries return an indictment more than 99 percent of the time. But here, the grand jury said no, we’re just not going to indict him. So Jeanine Pirro’s office came back with a misdemeanor charge of assaulting an officer, because a misdemeanor doesn’t have to go through a grand jury. But Dunn still demanded a trial by jury. His trial in D.C. federal court lasted four days, including something like seven hours of jury deliberations.
With a stop for sandwiches at lunch.
Yes, and if a sandwich were truly a weapon, I’m not sure you’d be able to eat it. So there’s a bit of a paradox there. Anyway, the jury came back with a verdict of not guilty, acquitting Sandwich Guy of all charges.
Mark Joseph Stern
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Before we get into jury nullification, I want to make a couple of points. First of all, as a rule, Mark and I are not generally for throwing sandwiches. Let’s not do that. Second, this comes the same week that voting proves to still be salient and doable. And I do see this as a story about one person standing up and saying, to quote last week’s show, that he’s not waiting for a postcard inviting him to resist.
This prosecution was, as you say, obscene overreach, and in some sense, that’s the story to tell. It got drowned out if you were following the coverage closely—which was truly amazing, because there was cross-examination about whether the sandwich truly exploded or was still in its wrapper. But if you put all of the jokes aside, there is this genius of the American jury system. It turns out that if you surge federal and military forces into a District that lacks the formal power to represent itself —and willy-nilly fire much of its workforce—even randomly selected juries will express their displeasure. Because the residents of D.C. are real people who have actual thoughts and preferences.
Exactly. Because it was never in doubt that Sandwich Guy threw the sandwich; he admitted it to law enforcement. His defense attorneys told the jury that he did it. The misdemeanor with which he was charged prohibits forcibly assaulting, resisting, opposing, impeding, intimidating, or interfering with federal officers “while engaged in or on account of the performance of official duties.” Sandwich Guy forcibly assaulted a federal officer with a sandwich; isolated in a context-free sense, it was probably a criminal act. But it was also an act of civil disobedience. And juries have an absolute right under our system to acquit any defendant for any reason, especially if they feel the prosecution is unjust, partisan, or vindictive. It is a fundamental aspect of our democracy that juries can still acquit even if the definition of the crime seems to fit the offense. None other than Justice Antonin Scalia wrote that the jury functions as “a circuit breaker in the state’s machinery of justice.”
As you noted, Dahlia, we in D.C. don’t have voting representation in Congress. We have limited home rule. We don’t have true autonomy, let alone statehood. Trump has taken advantage of that fact at every single turn. We were the testing ground for him to send in a massive surge of federal agents and National Guard troops. He even took over our police force and forced them to work with immigration agents who staged horrible abductions of law-abiding immigrants. We had to watch from the sidelines because there was almost nothing we could do. We can’t call our senators and ask them to try to stop it because we don’t have senators.
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So what part of democracy can we still participate in? We still have the jury. And I think this acquittal was 12 jurors participating in democracy in the highest and noblest way, saying: This is one of the few avenues that we have to push back against authoritarian government oppression. We are going to do it. They seem to have thought about it for a long time; they deliberated for hours. Maybe they rejected prosecutors’ claim that the officer couldn’t reasonably fear “bodily harm,” even though the judge defined that term to include merely “offensive” touching. Maybe they just nullified the charge. Either way, this was not an easy call. But I think it was obviously the right call in terms of standing up for D.C. and sending a message to Jeanine Pirro and the White House.
We talk a lot about how the courts alone can’t fix it. We had a long talk with Judge Michael Luttig last week about the limits of what courts can do. And sometimes we forget that juries also factor into that conversation—in an essential way, and also in a contagious way. We talk about judicial courage being contagious. So, too, is a jury saying: This is overreach and it’s preposterous. It’s very, very important to tell the truth and to say: No, this is what I saw, and that sandwich did not harm you. This is a moment really that vindicates truth-telling.
