All right, lawyer talk off the record, on the air, are you a ham sandwich? Because apparently six members, six Democrat members of Congress are not ham sandwiches. Because the grand jury, or a grand jury in federal court brought, convened by the Department of Justice, declined to sign off on an indictment charging them with whatever crimes the DOJ thought they committed by encouraging or quote, encouraging allegedly members of the military not to follow Trump's orders to do certain things that they declared to be unlawful. We covered this in some other episode. I'm not going to dig into the conduct, but it's an interesting launching point to talk about grand juries and how they work.

Ham sandwiches.

Ham sandwiches. So why are we talking about ham sandwiches? Because there's a famous quote, and our hero here, Troy, has done some research on this. There's a famous quote that I can indict a ham sandwich, meaning, you know, you could. It's not hard to get an indictment. If prosecutors want to charge you with a crime, they can just present it to a grand jury in a way that you get indicted. Before we talk about ham sandwiches, though, let's talk about a grand jury and how it works.

Okay?

A grand jury, it doesn't remember as a kid thing, and this doesn't make any sense. A grand jury should be the one that I see on TV on the Matlock episodes deciding guilt or innocence.

That would make sense.

That would make sense. That's actually called something. That's something called a pettit jury or not a grand jury. A grand jury is convened by the prosecutor and they bring in, say, 20 or 30 people and they put them in a room and they swear them all to be jurors. They swear them in. And the prosecutor then presents evidence to a grand jury in various forms. There's no rules of evidence. There's no objections by defense counsel, because we as defense counsel don't even have a right to be there. The defendant, the accused, doesn't even have a right to be there. The grand jury can call if, say, you're the detective and they call Troy to the stand. Troy, why don't you tell us about your investigation, what you learned and you just summarize what you learned.

Yeah, there's no cross examine either.

There's no cross examination or if the prosecutor wants, they can actually call witnesses to testify. Now, if you've been, I guess we'll take it one step further. Sometimes witnesses, the prosecutor does call witnesses to testify, and the witness might call me, you know, ring a ring a ling, would you represent me? I got a grand jury Subpoena. And the first thing I find out is, what if you're the lawyer, you're a criminal defense lawyer, somebody calls you and says the government wants you to testify in front of the grand jury.

Are you testifying about your own case?

Because I'm saying, are you getting accused of a crime?

Yeah.

Am I a target? The first thing you want to know is whether your person calling you is a target. In federal court, they have, in the Department of Justice has a policy, not a law, but a policy to send out something called a target letter. They tell you you're a target, but sometimes you might be a target, you may not be a target. Even if they don't know you're a target, you know things that maybe that can incriminate you, and that's why you called me and say, look, or maybe they want you to testify against your husband or your wife or something. And the first thing I do is I interview the client and I say, well, tell me what you know. And then I say, my client knows all sorts of stuff about this drug trafficking ring, but he doesn't want to talk because he might incriminate himself. I pick up the phone and then I call the U.S. attorney and I say, listen, you want to talk to John Doe over here? You going to give him immunity for his testimony? Tell me what's going on. Because if you're just going to call him to talk in this case, I'm going to tell him that he has a right to remain silent and I'm going to come with him to the grand jury. But as we said, I'm not allowed to be there. So you've never been there with me on one of these? No. What we do, we show up and I sit outside the grand jury room, I meet the prosecutor, and usually there's other witnesses waiting and I sit there with my client and they call my client to go in and I have to sit outside the grand jury room. I usually will give my client a little piece of paper that says, upon advice of counsel, I hereby refuse to testify or answer this question on the grounds that it may incriminate. That my responses may incriminate me under the Fifth Amendment, the United States Constitution. And then I had one where it was that plus they wanted my client to testify against her husband, and I asserted a marital privilege. The prosecutor, if they want, if he or she wants, can force that witness to read that at every single question.

So in a normal trial, you can't do that. At least the case law says you can.

Yeah.

In front of a jury and everything.

Because then you're tainting the jury's perception.

So you're not tainting the grand jury perception.

Well, you are. Clearly. You are.

Yeah.

And you see this in Congress, too, like a congressional hearing. If you want something entertaining, go back and watch the footage of, like, Congress hearings with the mobsters or with Jimmy Hoffa. It's great.

Or they just repeat that the whole time.

Well, they just repeat. Yeah, but the way they ask the questions, like, I think it was Bobby Kennedy asking questions of hoffa. Tell me, Mr. Hoffa. And you know what they can do? The technique they can use, they being the people asking the questions, is they can ask very, very suggestive, incriminating questions. And instead of denying it, the witness basically has to say, I refuse to answer on the grounds that it may incriminate me. That my response may incriminate me. You killed this guy. I refuse to answer on the grounds that my response may. So what's it look like? It looks like you're guilty. And that happens at grand jury sometimes. Other times. So the case that I'm talking about, I had a gal whose husband was being accused of some sort of tax fraud or tax evasion. She had signed the tax returns, so she was. You know, they wanted her as a witness to know what she knew. And I said, look, give her immunity, maybe. And they did. And then she still didn't want to testify because she had. She didn't want to testify against her spouse, and that was a privilege. So there was some legal wrangling going on. At any rate, they called her in, and she came out probably 50 times and said, what do I do? Read that. And she'd come out five minutes later. What do I do? Read that? Like I. It was like the. The stuff they taught me in law school. Not you, apparently, but the stuff they taught me in law school. But it's like. It was like it would never happen. They always tell you, yeah, you have a right to sit outside and then come out and ask you for after every question what to do. But it rarely happens. I don't want to say. It's only happened to me once in my career where that actually occurred that way. Other times, I'll just go and talk to the U.S. attorney and just say, look, you can call my client. He's taking the Fifth, and that'll sort of end it. They'll have them do it one time and that's it. Or other times, they won't even call him. They'll just say, I've even had a U.S. attorney, I think, ask me to make a record that my client would take the fifth and that was good enough for him. And I might have even said that to a grand jury on one occasion, I think. But anyway, we don't have a right to go in, only your client does. There are other instances where we get invited to come in and there is a time pretty regularly in Franklin county here in Ohio where we practice, say you've got a self defense murder case and the prosecutor is taking the case to the grand jury. They would give us an opportunity to have our client testify and then let the grand jury decide whether they want to indict our client. It's a risky proposition, but there's a lot of gain to be had. Our client goes in, he takes the witness stand and testifies. I'm not allowed to be there when he testifies either, but I don't like that the prosecutor's asking the questions and the grand jurors get to ask questions. It's a completely out of control scenario. It's completely out of control. But the prosecutor calls my client to testify and said what happened? Well, you know, I was in such and such a time and such and such a place. I got in this road rage incident with somebody and you know, he pulled a gun, I pulled a gun, I shot him. I felt like if I didn't, you know, you would make your self defense case and hope that the grand jury would say no indictment. I have done that once or twice in my career but I usually do it when I, when I know the prosecuting attorney very well and not that I'm getting special favors, I'm not saying that. But when a prosecutor tells me, look, this may be a self defense case, we're going to present it to the grand jury and let them decide. Do you want your client to try to convince them it was self defense and then they give us a fair shake in the grand jury and hopefully the grand jury brooms it. We would say, and the grand jury, it's called a no bill where they don't return a bill of indictment, they return no bill whatsoever and, and your client's not indicted because the grand jury apparently agreed that it was a self defense situation and the murder charge is therefore not appropriate. You know, on the one hand you could say, well shouldn't the prosecutor just not present it if they don't believe it's a solid case? There are a lot of political winds at play, you know, political, but pressures at play, you know, so they don't They've got family victims. They've got other. You know, they want some cover, maybe. And they're using a grand jury. And they say, well, look, if the grand jury indicts, so be it. I had one where, as a murder case where the grand jury didn't die, my client didn't testify for all sorts of reasons. And the grand jury actually returned some weird versions of murder, like involuntary manslaughter and a manslaughter charge. Just some weird stuff that didn't make a whole lot of sense. And the prosecutor's like, well, I just put it all out there. And this is what they came back with. Well, come on.

Something will stick on the wall.

Yeah. So back to the point. Ham sandwiches, the ham sandwich. If a prosecutor wants to get an indictment, they call Troy here, the fearless agent, to tell them all the bad stuff.

Yeah.

And they get an indictment, meaning you can indict a ham sandwich. I always thought somebody just made that up along the way. And we all just learned it as a matter of lore. But you actually looked it up.

Yeah. So in law school, they teach us. A judge from New York created the saying, you can indict a ham sandwich.

Who's the judge?

It's a sole Saul Watchler. And in my head, I was like, okay, there's probably.

So Saul was accused of a crime.

In my head, it would be in an opinion somewhere. There was some case where this judge. That's what he wrote instead, actually, Saul Watchler was indicted, snagged up by the FBI for harassing his ex lover and then threatening her and all this. And when he goes to his court case, he. He blames a prosecutor, saying that you can indict a ham sandwich. And he's dragged off to jail for a year. When he gets out, he's like, I was terrified I would only be known for this saying, but now I kind of want to be known for this. Now. He is.

The lore is this judge sort of proclaims his innocence. You couldn't diet a ham sandwich. This is bs. So we don't know if he made it up, but he certainly made it famous.

Yeah.

Yeah.

I just thought. I thought I was in an opinion. I had no idea it was actually the judge's case.

So the judge's case, he says, you're going to die. A ham sandwich. And then, of course, now that's all he's known for. Not his innocence, not all the brilliant rulings I'm sure he had as a judge. He's known for coining the Phrase. You can indict a ham sandwich.

Well, not. You like him also. Como even said that, like, you know, like New York, we should, like, respect him of everything good he's done. There's only one page in an amazing book that.

It's a really good one, though.

Yeah.

Yeah. If you coin the ham sandwich phrase, then that's good enough for me.

I imagine every law school and the country gets taught the same.

It happens all the time. I hear it on news all the time. All right, so what does all this have to do with Congress? Well, here's what's going on. These, like, six members of Congress came out and basically made statements to the military, our fearless military people in the military, soldiers that, look, if you feel this is an unlawful order, you don't have to follow it. I'm not going to go into details of what their statements were. This was. Even at the time, I sort of smelled what this was. I think everybody understood what this was. A bunch of political stuff.

Yeah.

I don't think they really were trying to insist that soldiers commit treason and not follow orders. They pushed the bounds a little bit, and it was probably improper, what they said from a certain standpoint. And then the DOJ says, well, look, this is a crime. This is insurrection or whatever. It would be sedition or encouraging sedition. I don't know what. We still don't know what crime the Department of Justice presented to the grand jury, but they did, in fact, convene a grand jury. And it was a lot like what we're talking about. I'm sure it was. And they presented to the grand jury whatever evidence they thought they had, and the grand jury did not return an indictment. Now, here's where everybody's going crazy, and it's premature because we need to know more. Yeah, I need to know. I don't need to know. But if we're really going to.

He needs to know.

If we're really going to make or have some opinion about this and reach conclusions about it, we would need to know what crime they were asking the grand jury to indict on. Or maybe they missed an element of the crime. It was a technical element that they didn't have yet that they're gonna have soon, or they forgot to present something. In other words, the Congress folks are saying, look, we're vindicated. And maybe they are. I don't know. That may end it. But the other side is saying, well, look, we can still go back and present other crimes, or even this one with more evidence, to a grand jury. And get an indictment and you could become ham sandwiches. Yeah, again, you know, it could also be that the Department of Justice just wanted somebody else to say no. You know, so, look, I mean, the. The DOJ sits under the executive branch of government, and the executive branch of government may have said, go find a charge, indict these folks. And the. The DOJ is saying, well, look, I. I'm not sure I can do that. I don't know if I can prove a crime. I don't know. But we'll present it to the grand jury, and then you can just sort of wash your hands of it and say, I did my best. Did my best.

The old college try.

Now, look, I don't presume to know what goes on behind the scenes in the rank and file of the Department of Justice, whether Pam Bondi is ordering it or whoever's doing what. But I guess the point here is there's too many variables to know, so I would just say, look, what we know, the data point that we have is that the grand jury declined to indict. It's easy to sort of, and maybe even okay to. To think, all right, the grand jury just didn't like this nonsense. They saw it for what it was. It was political crap. On the other hand, it might be something a little more detailed than that and nuance in that. And the ham sandwiches may return for the deli lunch after all. And these Congress folks could find themselves eating them. I don't know. But look, it's an interesting jumping off point. As we have said here, we don't get political, but I take this kind of news and try to turn it into at least an interesting discussion about how the system really works.

Yeah.

If you want us to do that with a topic, if you've got a thought for us, go to Lawyer Talk podcast.com, where you can send us a question, or you can do it right below here in the socials, in the comments, in the messaging. We try to get back to people. I can't cover all the comments. There's hundreds of them. But we do read them, or at least I try to, and it informs what we do here on the air. So appreciate it. Lawyer Talk off the record, on the air till now.