Why There Could Still Be an Eric Adams Trial. Under Trump, the Justice Department wants to drop the corruption case it pursued under Biden. The judge has every reason to keep it going and it looks like he may. The post Why There Could Still Be an Eric Adams Trial appeared first on Washington Monthly.
Why is there a flap over the resignations in the Justice Department over the government’s request to dismiss the criminal corruption case against New York City’s 110th Mayor, Eric Adams? As Federal District Judge Dale E. Ho put it, why is the situation so “unusual”?
Prosecutors don’t abandon criminal cases before trial unless they don’t have the goods. Here, the DOJ wants to drop the case for political reasons that have nothing to do with the case’s strength and the rule of law.
The drama unfolded in historic Room 318 of the United States Courthouse in Lower Manhattan, where Al Qaeda terrorists were tried, and Mafia kingpin Joe Bonanno surrendered to authorities. At the outset of Wednesday’s 90-minute hearing, Ho, nominated by Joe Biden, acknowledged that he had little authority to grant the motion, purportedly brought under Rule 48 of the Federal Rules of Criminal Procedure. With all due respect to the Summa Cum Laude graduate of Princeton and Yale Law School alum, Ho was wrong. The easy way out for him was to dismiss the motion as improper. The wrinkle is that DOJ asked the court to dismiss the case “without prejudice,” giving rise to the appearance that Trump could hold the charges over Adams’s head if he ever got out of line by, say, failing to enforce the administration’s policy involving massive deportation of undocumented migrants–a flagrant misuse of a criminal prosecution.
In an understated comment, Ho said he was unsure what “without prejudice” meant in this situation. The bespectacled jurist asked whether these charges could be brought again. Emil Bove, Trump’s brash deputy associate attorney general, appeared for the government and said they could.
Ho focused on the phrase “without prejudice.” Rule 48 provides for dismissal with “leave” of “court.” A dismissal ends the case. DOJ doesn’t want to end the case; it intends to continue, but not right now. The court could dismiss the motion as irregular, treat it as an application for an adjournment, and order the case to proceed to trial on April 21 as initially planned.
If DOJ refuses to designate a prosecutor to try the case, the court can appoint a special prosecutor.
When the Trump DOJ ordered the top prosecutors in the Southern District of New York to make the motion, it marked the appearance of what had been considered an endangered species: the principled resignation. The acting U.S. Attorney, Danielle Sassoon, and the lead prosecutor, Hagen Scotten, promptly resigned, followed by at least nine other Justice Department employees in New York and Washington. This set off a scandal in the palace of justice.
Most lawyers, at first blush, would say that if DOJ wants to dismiss a criminal case, it has the “discretion” to do so. The prosecution typically has discretion regarding what cases should be brought and dismissed. But, as Ho aptly reflected, this is not a usual case.
Biden appointed Judge Ho to the bench in 2023. The Senate narrowly confirmed him because Republicans objected to some of his statements and his advocacy against the Trump administration on behalf of the American Civil Liberties Union Voting Rights Project, which employed him. Before he took the bench, Ho had little experience in criminal litigation, and this is his first high-profile case. The courthouse wheel turned in the Southern District, and Ho drew the Adams corruption case.
At the hearing, Ho apologized to the lawyers.
“I’m sorry my questions are so elementary,” he said, but they went to the heart of the matter.
Mayor Adams, a Democrat, initially resisted the immigration crackdown of the Trump administration and said he was running for re-election later this year on a liberal plank. Now, he says he is considering becoming a Republican.
New York’s Governor Kathy Hochul had declared New York a “sanctuary city.” After he was indicted last September, however, and charged, among other things, with accepting campaign cash and other things of value so the Turkish government could admit the public to its uninspected consular building without a fire inspection, Adams had a political conversion.
It was a garden-variety official corruption case until Adams established an anchor to windward with Donald Trump. He then switched to endorsing the Immigration and Customs Enforcement crackdown, and New York ceased to be a sanctuary city and became a city for sale. What was Adams’s motive for the turnabout? Public policy or a presidential pardon?
After the switch, Trump publicly said that Adams was being mistreated, and the former police officer visited the former New Yorker at Mar-a-Lago to talk a little turkey.
Enter Emil Bove, formerly Trump’s lawyer in the Stormy Daniels felony case that resulted in Trump’s conviction.
Bove, a former federal prosecutor, ordered the United States Attorney for the Southern District of New York to drop the case. His stated reason was that Adams was needed to carry out Trump’s immigration policies and to protect public safety without the distraction of a criminal indictment, ignoring that Adams told Bloomberg News that he could carry out his mayoral duties and would leave the defense of the case to his lawyers.
Adams’s legal problems and his relationship with Trump have pushed his administration into crisis. Four top city officials resigned Monday after the Justice Department moved to dismiss Adams’s corruption case. Their departures raised questions about who will run the city while the mayor is in office.
The situation elicited a roar of disapproval from former federal law enforcement lawyers. On Monday night, three former U.S. attorneys from New York, New Jersey, and Connecticut filed a brief asking the judge to conduct an extensive inquiry into whether the Justice Department’s motion to dismiss the Adams case was in the public interest or a pretext for securing the mayor’s cooperation with Trump’s immigration policies. Some 400 former Assistant United States Attorneys (full disclosure, including me) signed a letter supporting their position.
Establishing that the government’s motion to dismiss is not predicated on the strength of the case, Ho asked Bove for a high-level explanation of the rationale behind the motion.
Bove argued that the judge could not invade the executive’s province of prosecutorial discretion. He even expanded his theory of “prosecutorial discretion” to a police commissioner under investigation (in New York City, two of Adams’s former police commissioners remain the focus of inquiries by the same prosecutor charging the Mayor). This is an amazing submission because Bove would expand the immunity that the U.S. Supreme Court recently granted to presidents to all manner of public officials. By that logic, no city or state government leader could be prosecuted on the specious theory that the criminal prosecution would inhibit them from carrying out their duties.
The district court is not a “rubber stamp” when considering whether to grant “leave of court” under Rule 48—an essential impetus behind the Supreme Court’s 1944 insertion into Rule 48 of the “leave of court” requirement to protect the public interest.
The community’s interest in the prosecution of the Mayor must be considered. It is a factor that cannot be ignored.
A civilized society is strong only so long as its laws are administered honestly, fairly, and impartially without political considerations.
Adams has no right to expect to be treated differently from any other defendant. Particularly here, the crime alleged was deliberate, and Adams’s corrupt effort was venality and greed.
Even if the motion falls under Rule 48, the court has plenty of discretion to deny it on these facts.
It is not uncommon for the court to scrutinize the government’s motive—let alone the Department’s legal “reasoning.” Judicial proceedings that involve “probing the government’s motives” abound. Consider, for instance, the Supreme Court’s position in the travel ban case. Or the case involving the Commerce Secretary’s inclusion of a citizenship question on the census, in which the Supreme Court held that the stated justification was pretextual. Or ordering a hearing that probes whether a prosecutor struck a potential juror because of his race. The examples are endless. When it comes to “scrutinizing,” the reasoning the government puts forward for its actions, well, that describes virtually every case in which the Department of Justice has ever participated as the defendant.
Rule 48 also permits courts faced with dismissal motions to consider the public interest in the fair administration of criminal justice and the need to preserve the integrity of the courts.”
One court held that even when the defendant consents to dismiss, the trial court may deny the motion in extremely limited circumstances in extraordinary cases when the prosecutor’s actions indicate a “betrayal of the public interest.”
“The judge should be satisfied that the agreement adequately protects the public interest” and “may withhold approval if he finds that the prosecutor’ committed ‘such a departure from sound prosecutorial principle as to [constitute]an abuse of prosecutorial discretion,” an appellate court said.
“It’s not in anyone’s interest here for this to drag on,” Ho declared. “I’m not going to shoot from the hip right here on the bench.” He said he wanted to take the time necessary to consider everything.
Governor Hochul said she would wait for the judge to decide about the Mayor’s criminal case before deciding whether to remove Adams from office. On Thursday, she announced that she’d made up her mind and would not remove Adams, adding that she planned to set up “guardrails” around Adams, beefing up inspector general audits of his office and unveiling legislation later. Okay, that’s one issue settled.
Without addressing the Rule 48 issue, Judge Ho today appointed Paul Clement, the highly respected solicitor general in the George W. Bush administration to advise the court on the matter. “Normally, courts are aided in their decision-making through our system of adversarial testing, which can be particularly helpful in cases presenting unusual fact patterns or in cases of great public importance,” the judge wrote.
Surprising, but not so surprising. The adversary system is the crown jewel of the common law we got from the Brits. And the appointment of an outside lawyer is not without precedent. When in May 2020 near the close of Trump 1.0, DOJ sought to dismiss the case under Rule 48 against Trump crony General Michael Flynn, who had pleaded guilty to lying to the FBI, the judge in Washington appointed an outside lawyer, former District Judge John Gleeeson, to assist the court.
Clement, like Gleeson will undoubtedly write a thorough memorandum for the court addressing the issues. All this will take time. Shakespeare’s Hamlet deplored the “law’s delay.”
But Ho can’t dither, As Ho said, the case is one of “great public importance.” The City needs to know whether to brace for a criminal trial of Mayor Eric Adams.
The post Why There Could Still Be an Eric Adams Trial appeared first on Washington Monthly.
