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No rubber stamp for the Eric Adams case judge
Under pressure from the Justice Department, Judge Dale Ho still has options.
The Adams situation ventures into uncharted legal territory, but it’s hard to see the prosecution going forward. It’s difficult as a practical matter and complicated as a legal one for a court to order up a prosecution when the executive branch has decided to drop it.
But first, U.S. District Judge Dale E. Ho can — and should — insist on two things. First, Ho, a former American Civil Liberties Union lawyer appointed to the bench by President Joe Biden, should demand far more detailed justification for tossing the case than the cursory — and frankly pathetic — explanation the Justice Department provided in its Friday night filing.
Under our criminal justice system, prosecutors, not judges, get to decide whether to file charges. But once the grand jury returns an indictment, Rule 48(a) of the Federal Rules of Criminal Procedure provides that it can’t be dismissed without “leave of court.” The rule was crafted precisely to deal with cases like the Adams prosecution.
As Thomas Ward Frampton, now a law professor at the University of Virginia, explained in a 2020 piece for the Stanford Law Review, the “principal object” of requiring judicial approval was “to guard against dubious dismissals of criminal cases that would benefit powerful and well-connected defendants” and “to empower a district judge to halt a dismissal where the court suspects some impropriety has prompted prosecutors’ attempt to abandon a case.”
The drafters of Rule 48 specifically cited the threat that cases would be dropped after “intercession from Washington.”
Bingo.
Frampton’s article came as the first Trump administration had moved to drop the case against Michael Flynn, briefly President Donald Trump’s national security adviser. The department’s reversal on Flynn was more extraordinary than its flip-flop on Adams because it came after Flynn had pleaded guilty to lying to the FBI, but before he was sentenced.
At the same time, the Flynn reversal was less troubling than the Adams situation because the decision to drop charges was at least framed as having a legal basis. Then-Attorney General William P. Barr claimed the government had determined that Flynn’s false statements weren’t “material” and questioned whether the government would be able to prove falsity.
In the Adams case, by contrast, prosecutors explicitly grounded their argument on considerations that didn’t have anything to do with the strength of the case.
“Dismissal is necessary because of appearances of impropriety and risks of interference with the 2025 elections in New York City,” the motion stated. Its supposed evidence? A website created by former U.S. attorney Damian Williams and an op-ed he wrote, both after leaving office. That assertion, as Hagan Scotten, the former lead prosecutor in the Adams case, scoffed in his resignation letter, “is so weak as to be transparently pretextual.”
The motion also argued that “continuing these proceedings would interfere with the defendant’s ability to govern in New York City, which poses unacceptable threats to public safety, national security, and related federal immigration initiatives and policies.” Scotten again: “The second justification is worse. No system of ordered liberty can allow the Government to use the carrot of dismissing charges, or the stick of threatening to bring them again, to induce an elected official to support its policy objectives.”
So what is Ho to do? In the Flynn case, U.S. District Judge Emmet G. Sullivan took the unusual step of bringing in a retired federal judge, John Gleeson, to argue against dropping the case. In the end, Trump pardoned Flynn, mooting the question of whether Sullivan should grant the motion to dismiss.
More recently, federal judges in the District of Columbia grappled with the issue as the Trump administration filed motions to dismiss pending indictments involving the Jan. 6 insurrection and, with evident reluctance, granted the requests.
The “Judiciary generally lacks authority to second-guess” the decisions by the executive branch about what cases to prosecute, U.S. District Judge Beryl A. Howell wrote in dismissing charges against members of the Proud Boys.
But Howell also cited cases in which judges had found it proper to deny a motion to dismiss, including situations where dropping charges didn’t serve “legitimate prosecutorial interests,” was “a sham or deception,” or favored “politically well-connected individuals.” Sounds like the Adams case to me.
Here Ho would be justified — and would be doing his job — to at least insist on getting more information about what transpired before the department decided to drop the Adams charges. Let’s hear from acting deputy attorney general Emil Bove, who signed the motion — or even Attorney General Pam Bondi, who, according to Bove, approved the action. Let’s hear from Danielle Sassoon, the interim U.S. attorney who resigned rather than drop the case, about her meeting with Bove.
Were the Justice Department officials’ claims a pretext for helping out Adams and lending credence to Trump’s accusations that the department under Biden had been “weaponized”? What conversations did they have with Trump or others at the White House about the Adams prosecution? Were they instructed to drop the case?
Ho can’t really order up a prosecution, but he can really help illuminate more of what transpired here.
And he can also fix a particularly repugnant aspect of the proposed arrangement. In the Proud Boys case, Howell refused the Justice Department’s request to dismiss the charges with prejudice; she said there was no basis for protecting the defendants against the prospect of future liability.
Here, the situation is the reverse. Dismissing the charges with prejudice would mean that Adams would not face criminal consequences for his alleged corruption, and, yes, that sticks in the craw.
But to dismiss the charges against Adams without prejudice, as the Justice Department is seeking, would give Trump officials undue leverage over the mayor. As Sassoon explained in her letter to Bondi, “dismissing without prejudice and with the express option of again indicting Adams in the future creates obvious ethical problems, by implicitly threatening future prosecution if Adams's cooperation with enforcing the immigration laws proves unsatisfactory to the Department.”
The Adams episode represents a big black mark on the Bondi Justice Department early in her tenure, an example of politics triumphing over law. Ho can’t erase that, but neither must he play the role of potted plant.
1 comment:
They'll complain about the FBI being politicized, fire a bunch of people, and politicize it in their favor or the way they want it to be. Same thing with the injustice department. It's all political cess now and that can be seen in other departments, which have their own rotten internal politics on top of the partisan bullshit.
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