With the prospect of the federal court overseeing the Mayor Eric Adams criminal case granting the government’s motion to dismiss the case (albeit without prejudice), the question arises as to whether the local state prosecutor’s office in Manhattan headed by District Attorney Alvin Bragg can fill the void in accountability. Can and will Bragg’s office bring charges against Adams for the same or similar alleged conduct under state criminal law.
We’ve seen this reel before. Bragg of course most famously picked up the Trump criminal investigation when the federal authorities balked for reasons that remain murky to this day. And Bragg did the same after President Donald Trump pardoned Steve Bannon for his role in a “build the wall” fraud scheme, in which Bannon’s co-defendants had been found guilty in federal court. (Those state charges against Bannon recently ended with a victory for the prosecutors but also a bit of a whimper; Bannon pleaded guilty to the state charges but with no jail time.)
There is thus reason to think Bragg might fill in a needed gap yet again, particularly given the peculiarly local interest in the criminal charges against Adams for alleged public corruption including in the mayoral election that brought him into office. Indeed, as of mid-December, Bragg already has under indictment a top aide to Adams for bribery and money laundering.
The Possible State Charges Against Adams
The first question — whether there are state analogues to the federal charges against Adams — is it turns out pretty straightforward. Adams is charged federally with 5 felonies arising from a conspiracy to receive campaign contributions for mayor from a foreign national, wire fraud, and soliciting and accepting a bribe.
The state analogues fit to a tee.
For the bribe charge, state law provides in § 200.11 (receiving a bribe, in the second degree):
“A public servant is guilty of bribe receiving in the second degree when he or she solicits, accepts or agrees to accept any benefit valued in excess of five thousand dollars from another person upon an agreement or understanding that his or her vote, opinion, judgment, action, decision or exercise of discretion as a public servant will thereby be influenced.”
Bribe receiving in the second degree is a class C felony.
State law also provides in § 200.25 (receiving reward for official misconduct in the second degree):
“A public servant is guilty of receiving reward for official misconduct in the second degree when he solicits, accepts or agrees to accept any benefit from another person for having violated his duty as a public servant.”
The federal campaign finance charges also have clear state analogues.
Grand Larceny (for the alleged theft of the matching campaign contribution funds) in §155.40 (Grand Larceny in the Second Degree):“A person is guilty of Grand Larceny in the Second Degree when such person steals property and when the value of the property exceeds fifty thousand dollars.” Grand Larceny in the Second Degree is a Class C felony.
State law also criminalizes: Filing a False Instrument for soliciting the false certifications from the straw donors in § 175.35 (Offering a false instrument for filing in the first degree), “A person is guilty of offering a false instrument for filing in the first degree when: knowing that a written instrument contains a false statement or false information, and with intent to defraud the state or any political subdivision, public authority or public benefit corporation of the state, he or she offers or presents it to a public office, public servant, public authority or public benefit corporation with the knowledge or belief that it will be filed with, registered or recorded in or otherwise become a part of the records of such public office, public servant, public authority or public benefit corporation.
The DA’s Factual Investigation into Adams
DA Bragg may not need to start his investigation from scratch. First, he already has under indictment Ingrid Lewis-Martin, a top advisor to Mayor Adams, for bribery and money laundering. No doubt, in connection with that case he has developed his own evidence into that particular scheme. His office may have already shared evidence back and forth with the SDNY prosecutors on the Adams case. The Lewis-Martin indictment involves a different nucleus of facts than the federal Adams case, but prosecutors would have reason to share information on alleged corruption at the highest level of the mayor’s office, especially when the DA’s office has a direct interest in the mayor’s underlying conduct being pursued.
Finally, even if Bragg still wants or needs federal grand jury information, he can make a motion for the same — and may have done so already as any such application would be filed under seal. Federal Rule of Criminal Procedure 6(e)(3)(E)(iv) permits the federal government to disclose federal grand jury material to the DA if it involves the potential violation of state law. Whether Bragg could obtain the information over the opposition of the federal government, is another matter, but that may all be water under the bridge at this point.
Of course, Judge Dale Ho has yet to dismiss the federal charges, but even if he were to do so – and he has limited authority here – all is not lost for New Yorkers who would like to see the criminal justice system work. Following events at DOJ last week, the mayor told New Yorkers, “I am no longer facing legal questions.”
Not so fast. Adams’ federal stratagem may, in short, not be the end of the story.