Judge Appoints Veteran Lawyer Paul Clement to Weigh In on DOJ’s Bid to Dismiss Eric Adams Indictment

Judge Dale Ho has adopted the Michael Flynn model in navigating this case. I am wary.

W ell, you can’t say we’re steering you wrong.

Along the lines I outlined when it was first announced that the Trump Justice Department was ordering Southern District of New York (SDNY) prosecutors in Manhattan to dismiss the corruption indictment against Mayor Eric Adams, the Biden-appointed presiding judge, Dale E. Ho, has adopted the Michael Flynn model. That is, with Mayor Adams’s lawyers and Acting Deputy Attorney General Emil Bove in agreement that the indictment should be dismissed, Judge Ho has appointed a well-respected former Justice Department lawyer to make any arguments in opposition.

Specifically, Ho has appointed Paul Clement as amicus curiae (friend of the court). Clement, who was solicitor general (the DOJ’s lawyer before the Supreme Court) in the Bush 43 administration, is one of the nation’s best lawyers.

Why Appoint an Amicus?

I am wary of the appointment. Federal procedural rules do not provide for third-party amicus appearances in criminal cases — for the very sound reason that the interested parties are the government and an accused whose liberty is at stake; there are no cognizable third-party interests. Moreover, the Flynn experience (which we covered extensively) demonstrates that the third-party amicus process can be abusive: It implies that the judge has some higher interest than protecting the defendant’s rights, and it invites the judge to usurp the executive’s power to decide whether to proceed with a prosecution.

That said, district judges have broad discretion in these matters and — as Judge Ho points out, specifically citing the Flynn case — there is precedent for such appointments.

Once he decided to go this route, it is to the credit of Ho, a progressive ideologue who relished combat with Trump’s first administration as a private attorney, that he has chosen well. Paul Clement is a solid conservative lawyer whose stellar reputation with the Supreme Court (and elsewhere) is deserved. He can be trusted to give the court sound advice: (a) to outline the legal concerns about a “without prejudice” dismissal arrangement in which the DOJ is reserving the right to reindict Adams at some later point; (b) to explain the limits of a court’s authority under the governing dismissal provision, Rule 48(a) for the Federal Rules of Criminal Procedure; and (c) to promote the Constitution’s separation-of-powers principles, which vest plenary prosecutorial authority (including discretion to pursue or abandon an indicted case) in the executive branch — even if the Trump DOJ’s exercise of that authority in Adams’s case has been unworthy.

The Downsides of Appointing an Amicus

Still, Judge Ho’s order is ill-conceived.

The judge rationalizes that, because the government and defense are in agreement on the dismissal, the adversarial process normally relied on by courts to crystallize disputed issues is lacking. Hence, the supposed need for an outside lawyer to represent . . . who or what exactly? Again, the executive branch has exclusive authority over whether to proceed with a prosecution, and the only person with a real interest in whether it does so is the defendant whose liberty is at stake.

Furthermore, there are countless matters in a criminal litigation on which the prosecutors and defense lawyers agree — including every plea bargain (which is how over 90 percent of criminal cases are settled). When the parties agree on a matter of importance in a case, courts do not appoint outside counsel to enhance the adversary process. The litigation is innately adversary because it’s a lawsuit brought by the government against the accused. Consequently, courts rightly assume that both sides are represented by counsel and are acting in furtherance of their interests. Even in an adversarial scenario, there are often many agreements between the adversaries because the dispute is about interests not annihilation of adversary. Opponents frequently get to mutual positions despite having competing interests. Their disputes get settled by negotiations, even if third parties don’t like the settlement. That’s how it goes in most forms of high-stakes human conflict.

The Flynn Episode: A Misguided, Inapposite Precedent

As for the Flynn episode, it is no model, and it is saliently different from the Adams situation in any event.

The DOJ, under President Trump’s then–Attorney General Bill Barr, moved to dismiss the indictment of General Michael Flynn, who fleetingly was Trump’s first national security adviser but was dubiously indicted for making false statements to the FBI under circumstances in which (a) the FBI had no basis to regard Flynn as a criminal suspect; (b) the FBI skirted various rules in order to do a brace interview of Flynn, then a top White House staffer, in the absence of lawyers for himself and the White House; (c) Flynn correctly told the interviewing agents that there was probably a recording of the conversations they sought to ask him about; and (d) the agents who interviewed Flynn did not believe he was intentionally misleading them — which is why Flynn wasn’t charged at the time. The charges came only months later, brought by notoriously anti-Trump lawyers on special counsel Robert Mueller’s staff. According to Flynn, moreover, he pled guilty after prosecutors suggested that they might otherwise charge his son (who was in a consultancy business with his father).

Judge Emmet Sullivan, who had taken Flynn’s guilty plea (in which Flynn conceded that he was pleading guilty because he was guilty), was unabashedly hostile to the Trump DOJ’s dismissal motion. Judge Sullivan proceeded to appoint a former federal judge, John Gleeson, as amicus curiae. Gleeson was already on record as a Trump critic, and it was no surprise when he recommended — lawlessly, in my opinion — that Judge Sullivan refrain from granting leave to dismiss, which was obviously the recommendation Sullivan wanted.

There was no legal justification for this position. To repeat what I discussed earlier this week, the only reason Rule 48(a) requires leave of the court before a formally charged case can be dismissed is to protect the due process rights of the accused — to ensure that the government is not dismissing in order to gain a tactical advantage in the case, such as to exhaust the defendant’s resources. Usually in that situation (although not always), the defendant objects to the dismissal motion. The rule is not intended to make the court the guardian of the “public interest” or empower it to force the government to prosecute.

Unlike the situation in Adams’s case, the Trump DOJ in Flynn’s case was seeking dismissal with prejudice, meaning the DOJ would not have been able to reindict Flynn. Ergo, Flynn’s due process rights were fully protected, and it thus made sense for him to agree with the government that the indictment should be dismissed. Since Judge Sullivan’s only legitimate role in the dismissal scenario was to protect Flynn’s rights, there was no sound basis for him to deny the dismissal motion. Quite aware of that fact, Sullivan did not actually deny the motion — he just refused to act on it.

That was an unbecoming political calculation. The Flynn dismissal controversy broke out toward the end of Trump’s first term. Sullivan knew that if the matter went unresolved, the incoming Biden DOJ would withdraw the dismissal motion and proceed with the case against Flynn. Correctly, Sullivan figured that Trump wouldn’t allow that to happen, meaning that if Sullivan dragged his feet long enough — with the indulgence of the Democrat-leaning D.C. Circuit — Trump would pardon Flynn before leaving office. That’s what happened, and it relieved Sullivan of the duty to grant a dismissal of which he personally disapproved.

The ‘Without Prejudice’ Term Makes Adams’s Dismissal Harder to Justify

To be fair to Judge Ho, from a Rule 48(a) perspective, the Adams case is a harder one than the Flynn case. Even though it is ostensibly against his interests, Adams agreed to the Trump DOJ’s condition that the dismissal be without prejudice to the refiling of charges at a later time. That makes the deal look like exactly what the prosecutors who resigned over it say it is: an unseemly quid pro quo in which the Trump administration is inducing the mayor’s cooperation with Trump’s immigration policies (which are unpopular with most New York City voters who elected Adams) by maintaining the possibility of renewed prosecution if Adams reneges.

Naturally, the DOJ and Adams indignantly insist that there is no such understanding. But if that were true, it would make no sense for the DOJ to reserve the right to prosecute Adams. After all, Bove claims (however implausibly) that the SDNY’s indictment of Adams was “politically motivated”; so why would the DOJ reserve the right to revive charges that it says should never have been brought in the first place?

Presumably, this is why Ho wants input from Clement. First, the judge may very well conclude that the “without prejudice” term is a violation of Adams’s rights — even if Adams has agreed to it because he figures (probably rightly) that the Trump administration wouldn’t dare reindict the case after so ceremoniously dropping it. That would be a sound basis for Ho to deny leave to dismiss unless the dismissal is with prejudice — meaning Adams could not be reindicted.

Second, that would raise the question of what Ho’s options are if he denies the dismissal motion. (To my mind, his option is to grant the dismissal motion with the proviso that the court deems it is with prejudice, regardless of what the DOJ says, so that if the DOJ tries to charge Adams again, he’ll have a defense analogous to double jeopardy.) Ho’s decision will be more credible with Clement’s input.

Third, while it is Ho’s duty to protect Adams’s rights, Adams is unsympathetic, and the dismissal deal is unsavory. Ho expects that grappling with Rule 48 will require a description of the nature of the dismissal deal, which led the prosecutors closest to the case to resign rather than participate in it. In light of the judge’s prior battles with Trump, he grasps that such a description will be less susceptible to criticism if it comes from Clement rather than from Ho himself.

During the 2020 presidential campaign, mirroring a successful strategy from the 2016 campaign, Trump put out a list of 20 prominent conservative legal scholars whom he might nominate if there were a Supreme Court opening. Clement’s name was on the list. I wouldn’t read much into that. No list of that kind would have been credible without Clement’s inclusion. It’s been over 17 years since Clement has been in a government post, he did not serve in the first Trump administration, and there’s no reason to believe he’s either a MAGA devotee or a Trump hater. Without an ax to grind, he will call it like he sees it: Clement will not go out of his way to cast aspersions on the Trump DOJ or Mayor Adams, but he will accurately report on elements of the dismissal agreement to the extent they bear on how a Rule 48(a) motion should be resolved.

I doubt that Judge Ho really needs outside help to rule on the motion. But if you’re going to ask for outside help, you couldn’t ask for anyone better.