How the Eric Adams criminal case is resolved could not be more important to the rule of law in America. It may well determine whether the new Trump administration will be permitted to bend people to do its bidding by resort to the most coercive of bludgeons, a criminal indictment. To be able to thwart that potential illegal activity and to protect government attorneys who question such tactics from improper retribution, the assigned judge must hold an evidentiary hearing in the Adams case. The judge must do so to determine if the court is being asked to condone an illicit stratagem.
The Current Status of the Adams Case
In an exceedingly rare move, the Trump-Bondi Justice Department has sought to dismiss, without prejudice, the Adams indictment. On Feb. 19, the assigned Southern District of New York judge, Dale Ho, heard from the government and the defense. Unsurprisingly the defendant was on board with the government’s motion to drop the case.
No doubt the defense would prefer its being dropped with prejudice – any defendant would want that so as not to worry that it could be resurrected by the government for any reason at any time. Not looking a gift horse in the mouth, though, the defense agreed with the government’s motion without floating that alternative.
But it is the purgatory created by a dismissal without prejudice that has given many (including this author) the most pause, as it, by intention or effect, keeps Adams on the very tightest of leashes so that the mayor has every reason to curry favor to avoid renewed charges.
Two days later, on Feb. 21, Judge Ho issued a written decision appointing Paul Clement (an esteemed conservative appellate lawyer) as an amicus to represent the opposing side– that is to present any factual or legal arguments as to how the court should proceed.
There is a blueprint for this unusual step – Judge Emmit Sullivan who presided over the Michael Flynn criminal case brought by Special Counsel Robert Mueller (I served on that team, but did not work on that matter). In the Flynn case, the Trump administration also sought to drop a criminal case (after Flynn entered a guilty plea, but had a pending motion to withdraw that plea). Judge Ho cited Judge Sullivan as precedent, as well as the D.C. Circuit’s affirmance of Sullivan’s appointment of another esteemed lawyer — the former federal judge John Gleeson — to advocate the opposing position since the government and defense were aligned.
Judge Ho’s selection of Clement was particularly savvy, not just because of the former solicitor general’s sterling reputation and conservative bona fides, but the Supreme Court had itself appointed Clement as an amicus to represent the position of the government (where the administration had changed and now was aligned with the other side, leaving the court without a true opposing counsel). Judge Ho cited that Supreme Court precedent too.
What Should Judge Ho Do Now?
Now that the court will have the benefit of an adversarial process, how should Judge Ho proceed? It seems to me that he has only one course of action, which is to hold an evidentiary hearing to determine the nature of the agreement, if any, between the Department of Justice and Adams.
To be sure, the Department of Justice at the hearing on Wednesday argued that the court needed to hear nothing further than the untested representations in the government’s motion papers and at the hearing that day. Emil Bove, the acting Deputy Attorney General, made the unusual decision to appear personally before Judge Ho with no other DOJ counsel appearing on the matter, which served to make it impossible for the court to hear from any other DOJ representative, including the career prosecutor who news reports indicated had signed the government’s motion under significant duress from Bove.
Bove argued that his submission was unchallenged, that he was entitled to the presumption of good faith and regularity, and that a proposed amicus brief from former U.S. Attorneys should not be considered as it was mere “partisan noise.” To quote Bove “there’s no basis to question my representations to this Court…” (Tr. at p.44)
Bove went further, however. He contended that even if there were a valid factual dispute, and the court found a quid pro quo between the government and Adams, the court would still have to grant the motion and dismiss the case without prejudice. In one of the most remarkable moments, Bove said:
“I don’t concede, and I don’t think it’s correct, that even if there was a quid pro quo, there would be any issue with this motion. But the Court doesn’t even need to reach that based on the record that your Honor exercised discretion to create today, and I think in a very helpful way.” (Tr. at p. 49)
I expect Clement will make two arguments. He can say, correctly, that there is ample evidence to support the minimal showing to warrant holding a factual hearing to decide the nature of any agreement between the government and Adams.
He can, among other things, point to:
- the letter by the former head of the SDNY office, Danielle Sassoon, to Attorney General Pam Bondi alleging facts that Sassoon said were tantamount to a quid pro quo (and her resigning rather than going along with that stratagem);
- the reported negotiations between Bove and Adams behind the backs of the assigned SDNY prosecutors;
- Bove’s confiscating the SDNY notes of the meeting where she contends that agreement was discussed (and Bove’s questionable “defense” that he did so to avoid leaks);
- the resignation of eight career prosecutors (mainly in SDNY and Main Justice’s Public Integrity Section) who refused to sign the motion to dismiss;
- the dramatically evolving and conflicting statements from the government itself as to why it is seeking the dismissal, and how they do (and do not) square with the request that the case be dismissed but without prejudice; and
- the outlandish Fox News appearance on Feb. 14 where Adams and Trump’s border czar talk about their deal — and the steps the czar will take if Adams does not live up to it (an interview that occurred after the alleged quid pro quo became publicly known).
Indeed, Clement will be able to point to the Attorney General’s own statement on Feb. 21 about why the Department was seeking to drop the prosecution, in seeming sharp tension with the reasons previously given by Bove. A.G. Bondi: “It was an incredibly weak case filed to make deportation harder. That’s why they did it. They took one of the biggest mayors in the country off the playing field in order to protect their sanctuary city. This case, it was so incredibly weak … I don’t even think it could survive a verdict.” Bove, by contrast, in his initial letter to Sasson and in court, has said he was not questioning the merits of the case or the bona fides of the prosecutors.
But both Bondi and Bove are laying bare the idea that the dismissal is to permit Adams to carry out the Trump immigration agenda. The dismissal without prejudice keeps him tethered to that goal. And their newly minted public statements denigrating the quality of the criminal case only makes the apparent usage of the criminal case as a tool to bend Adams to their will that much more thuggish – since the only legitimate response if you thought a case was not righteous is to drop it altogether.
The Nature of Any Quid Pro Quo
In the face of the substantial factual reasons for Judge Ho to hold an evidentiary hearing, Bove has a rejoinder. He argued to Judge Ho that this is all legally irrelevant. According to Bove, even if there were a quid pro quo, that conduct is subsumed and permitted by the vast prosecutorial discretion recognized by the courts as to who to charge and who not to.
In this, Bove will be aided by citation to the Supreme Court’s recent presidential immunity decision, which recognized criminal immunity for a president when communicating with his Attorney General. That zone of immunity even covered an indictment that alleged Donald Trump’s importuning the DOJ’s to carry out a “sham” election fraud investigation to support his efforts to remain in office. The Supreme Court recognized such communications as within the exclusive and preclusive powers of the president. Bove clearly alluded to such executive prerogatives in the oral argument before Judge Ho.
Bove is certainly correct that not all quid pro quos are suspect or wrong — or even unusual for that matter. Federal cooperating witnesses enter into written agreements with the government all the time. The parties make various commitments to each other (e.g. the defendant testifies truthfully, and the government files a motion bringing the cooperation to the attention of the sentencing judge). Corporate defendants enter into deferred prosecution agreements with numerous commitments which if breached could lead to reinstated charges. And the defendants in these situations routinely feel significant pressure to enter into these agreements — that is par for the course.
But I suspect the second argument Clement will (and should) make is that the DOJ position goes wrong when it contends that no matter what the quid pro quo, the prosecution has “virtually unreviewable” discretion. (Tr. at p. 23) Leave aside that here, unlike the routine situations I noted above, there is no written agreement between the parties, but only conflicting accounts (including internally inconsistent accounts from the government) about what precisely is the reason for seeking dismissal; let alone dismissal without prejudice; as well as what, if anything, Adams may be called on to do to avoid the government reinstating the charges. Recall that even in these routine and acceptable quid pro quo situations noted above, there is a written agreement and, even then, the court engages in an inquiry to assure itself that it understands all the terms of any deal between the parties so it can be put on the public record.
But leaving all that aside, Bove’s legal position is novel and dangerous in the extreme, and an unwarranted extension of, as opposed to an application of, the Supreme Court immunity ruling. It simply is not — and cannot be — the law that all quid pro quos are legal. Take three examples:
- The DOJ obtains the indictment of a sitting Member of Congress from the opposing party. Prosecutors agree to seek dismissal of the charges without prejudice so long as the defendant votes with the President’s party — the case is sought to be dismissed without prejudice to keep the defendant on a choke collar if she does not live up to the deal.
- A DOJ senior leader obtains the indictment of a wealthy entrepreneur and agrees to dismiss the case without prejudice, but only if the defendant gives the DOJ leader $50,000 every month in perpetuity.
- The DOJ senior leader tells a wealthy entrepreneur that he will not seek her indictment, but only if the defendant gives the DOJ leader $50,000 every month in perpetuity.
Scenario 3 is, of course, a federal crime. See, e.g. 18 U.S.C. sec. 872 (“Whoever, being an officer, or employee of the United States or any department or agency thereof, or representing himself to be or assuming to act as such, under color or pretense of office or employment commits or attempts an act of extortion, shall be fined under this title or imprisoned not more than three years, or both”).
So too are scenarios 1 and 2. And whatever the scope of prosecutorial discretion and the criminal immunity of the president for official communications with his Attorney General, no court has held that prosecutors can engage in any of these three scenarios under the guise of prosecutorial discretion, or that their conversations with a defendant to carry out such an extortion are absolutely immune.
And with respect to the first two scenarios, the government has the added problem in arguing that this is within the executive branch’s vast discretion when it is beseeching the judicial branch to bless in the extortion.
Without an evidentiary hearing, the DOJ is asking Judge Ho to operate blind, with the real prospect that the court would be party to an illegal scheme. And, after all, what courts do every single day in this country is decide disputed facts. They swear witnesses and admit physical evidence (such as the contemporaneous notes of meetings). They allow direct and cross examination. They observe and assess credibility, demeanor, motive, internal consistency and consistency with other witnesses and physical evidence. And how a witness’s testimony squares with the requested relief (e.g. if the Attorney General believes the Adams prosecution was a partisan witch hunt why is the DOJ not moving to dismiss the case with prejudice or the president not pardoning Adams — something he seems prone to do for a political figure who sold a Senate seat and every convicted J6 defendant.)
Here, that factual determination by Judge Ho is critical to knowing if there was a quid pro quo and, even if there were, whether it was an improper one that the court is nevertheless being asked to bless under the guide of unfettered prosecutorial discretion. Getting this case wrong couldn’t be more important — it could open the floodgates to the three scenarios above and other extreme abuses of power.
The parties and amicus are to submit their papers to Judge Ho by March 7, and oral argument if needed will be one week later. Stay tuned to this space for more.