The Eric Adams Mess

National Review Online

Friday, February 21, 2025

 

The controversy over the mess the Justice Department has made of the corruption case against New York City Mayor Eric Adams is about to intensify.

 

After Trump political appointees dropped the prosecution, which was scheduled for trial in April, top prosecutors in the Southern District of New York (SDNY) resigned. Acting Deputy Attorney General Emil Bove then pressured the lawyers in the Public Integrity Section of the Department of Justice to sign a dismissal motion they understandably believed lacked candor. (Bove finally signed it himself.)

 

Bove indicated that he was acting in consultation with his new boss, the just-confirmed Attorney General Pam Bondi — who had Bove accept the resignation of the interim SDNY U.S. attorney, Danielle Sassoon, rather than accommodate the impressive Trump appointee’s request to meet and discuss the Adams case. That’s a bad sign, particularly given the respectful tone and persuasive substance of Sassoon’s letter, which attempted to warn Bondi of the firestorm that would await the DOJ in court if Bove followed through in dismissing the 57-page indictment of Adams for taking bribes and illegal campaign contributions.

 

That firestorm has arrived.

 

In our constitutional system, prosecution is a “quintessentially executive function,” as Justice Antonin Scalia put it in his memorable 1988 dissent in Morrison v. Olson, involving the ill-conceived and happily lapsed independent counsel statute. Reflecting this, Anglo-American law long endowed prosecutors with unrestricted authority to drop cases. In the middle of the 20th century, however, at the Supreme Court’s urging, Congress adopted a criminal procedural rule — Rule 48(a) — that requires prosecutors to seek “leave of court” in order to dismiss an indicted case.

 

The Department of Justice must therefore obtain the permission of Judge Dale Ho to dismiss the case. Judge Ho is a progressive Biden appointee who, as an ACLU lawyer, reveled in crossing swords with the first Trump administration. It was Ho, in 2020, who persuaded the Supreme Court (in Trump v. New York) to block Trump’s effort to exclude illegal aliens from the decennial apportionment process. And Ho’s confirmation, by the slimmest of margins, was held up for two years over Republican objections to his provocative, partisan social media posts. (Ho apologized to get the seat.)

 

The SDNY was cut out of negotiations that Adams’s lawyers conducted with the White House, then Bove. In her letter, Sassoon contended that the resulting deal calling for dismissal of the case was unseemly in two ways.

 

First, Bove baselessly claimed that the indictment of Adams was “politically motivated” because it was brought by a Biden-appointed U.S. attorney, Damian Williams, after Adams derided Biden for letting hundreds of thousands of illegal aliens flood the city. By his own admission, Bove did not assess the facts of the case, so he was in no position to make such a judgment. But his explosive claim is apparently untrue in any event: The investigation began under one of Williams’s predecessors more than a year before Adams turned on Biden (the mayor had previously backed both Biden and sanctuary-city policies). Williams was only minimally involved in the investigation’s oversight; and with both Biden and Williams gone, the SDNY and Public Integrity Section prosecutors — whose integrity Bove acknowledged to be unimpeachable — pursued the case under Sassoon’s direction out of the belief that Adams is guilty as charged. Adams’s lawyers did not even file a court motion to dismiss the case on selective prosecution grounds; such a motion would have been frivolous.

 

Second, Bove induced Adams to agree that the dismissal would be “without prejudice” — meaning the DOJ could reinstate the charges at a later time. Since the rationalization for dropping the case was that this would allow Adams to support Trump’s immigration-law enforcement policies, the deal smacks of a quid pro quo in which the president seeks to maintain leverage over the mayor. It’s essentially lawfare: using the law enforcement apparatus for political ends. Moreover, if Bove’s first rationale for dismissal — “politically motivated” indictment — were sincere, it would make no sense for the Trump DOJ to retain the right to reinstate the “politicized” charges.

 

Judge Ho thus has an embarrassment of riches to work with here. That said, there are significant limits to Ho’s authority. His responsibility is to protect Adams’s due process rights, not to serve some vague notion of “the public good.” As the Supreme Court explained in Rinaldi v. United States, Rule 48(a)’s “leave of court” requirement is a narrow due process exception to the prosecutor’s plenary power over whether to bring or persist in criminal prosecutions. Its purpose is to protect the defendant by ensuring that the government is not tactically dismissing the case — either to bring it again at a later, more advantageous time, or to harass and exhaust the accused with serial dismissals and reindictments. The rule is not meant to substitute the court’s judgment about the merits of prosecuting for that of the executive branch.

 

Certainly, then, Judge Ho should explore the “without prejudice” aspect of the arrangement to determine whether Adams has been strong-armed into assenting, and whether the court should endorse such a dubious arrangement. But the judge must resist the demands by Democrats and activist lawyers that he order the DOJ to persist in the prosecution, or even appoint a special prosecutor to supplant the DOJ and try Adams on the charges. Even though the Trump DOJ has been a poor steward of prosecutorial power in this case, it remains a constitutional tenet that the whole of that power belongs to the executive. The judiciary has no authority to order a prosecution.

 

The Adams case has already been a black eye for the law. Let’s not make matters worse.