Monday was supposed to mark a high-profile win for the Justice Department, but the trial of accused sandwich tosser Sean Dunn barely got off the ground before it hit a wall of embarrassment. Dunn, who was initially targeted with felony assault charges for allegedly hurling a foot-long sub at a federal agent during the D.C. takeover, now faces only a misdemeanor after several grand juries refused to indict him on the more serious charges.
The opening moments of the trial exposed yet another DOJ blunder. Politico’s legal reporter Josh Gerstein summed up the mess on X: “Oh, great. DOJ kicks off trial of sandwich man with a structural error.”
What was the structural error? According to the Associated Press: “For several hours on Monday, the judge, prosecutors and defense attorneys individually questioned prospective jurors about their knowledge of the case and other potential biases. A white noise maker prevented courtroom observers from hearing their conversations.”
That’s a problem. Jury selection in a criminal trial must be public, a principle enshrined in the Supreme Court’s 2010 ruling in Presley v. Georgia, which Gerstein cited. In other words, the DOJ was conducting part of the trial in secret — a clear misstep.
Dunn’s lawyers immediately demanded that the jury selection process be restarted. Judge Carl Nichols, a Trump appointee, refused, calling it “drastic.” Gerstein’s reaction summed up the déjà vu: “We’ve been through this before, people!”
He was referring to a 2019 case where the Trump-era DOJ made the same mistake, forcing a restart of jury selection. Apparently, history did not repeat well.
The defense also framed the case as selective prosecution. They argue that under normal circumstances, tossing a sandwich would never reach federal court. Instead, they claim, the Trump administration is making an example of Dunn while simultaneously pardoning rioters involved in the U.S. Capitol attack.
“The defendant is being prosecuted for the obvious reason that he was recorded throwing a sandwich at a federal officer at point-blank range,” his attorneys wrote.
With jury selection already clouded by a possible constitutional error, the trial faces an uncertain path forward. Whether Dunn can appeal on those grounds remains unclear, but for the DOJ, this “foot-long fiasco” is shaping up as a textbook case of a trial derailed before it even started.
