Mayor Adams Seeks Dismissal with Prejudice, Alleging Prosecutorial Misconduct

E ven though the Trump Justice Department has already moved to dismiss the political corruption indictment against Eric Adams, the New York City mayor’s lawyers have now filed a motion asking Judge Dale Ho to dismiss the case based on alleged prosecutorial misconduct.

They cite the February 12 letter to Trump administration Attorney General Pam Bondi from Danielle Sassoon, the former Trump-appointed interim United States attorney for the Southern District of New York (SDNY), in addition to a second letter — this one directed to Acting Deputy Attorney General Emil Bove — penned by the former lead SDNY prosecutor on the Adams case, Hagan Scotten.

The letters argued that (a) there was no basis in fact or law to dismiss the case, (b) the SDNY was confident in the strength of the case, (c) the SDNY was prepared to file additional charges (obstruction) against Adams, and (d) Main Justice’s determination to dismiss the case, voiced by Bove, smacked of an unsavory quid pro quo, by which the charges would be dropped in exchange for the cooperation of Adams — a Democrat with a history of championing New York’s sanctuary city policies — in Trump’s aggressive enforcement of immigration laws. On that last point, Sassoon recounted that Bove had chastised one of the SDNY prosecutors for taking notes at a meeting to discuss the dismissal and had even confiscated the notes, inferentially to avoid the creation of a contemporaneous paper record of Bove’s rationale for dropping the case.

Adams’s new motion, which also favorably cites a letter from Bove (for the proposition that the SDNY’s “factual and legal theories . . . are, at best, extremely aggressive”) does not claim that it was improper for the prosecutors to correspond. His complaint is that the correspondence was leaked to the media — an impropriety that has to be laid at the government’s feet since the exchange of letters was an internal Justice Department exercise. The leaks have caused Adams grave harm, his lawyers contend, because not only will it be impossible for him to get a fair jury (in the unlikely event there is a trial) but also because political foes and other detractors have seized on the prosecutors’ correspondence to argue for his removal from office and his defeat in the mayoral primary (scheduled for late June). Adams’s attorneys also maintain that the leak of the correspondence reveals grand jury material, in violation of federal procedural rules (Rule 6(e)) — reasoning that the discussion of potential new charges against Adams relates to grand jury proceedings that ensued after the current indictment was returned.

The relief sought by Adams is dismissal with prejudice — i.e., with no possibility of prosecutors’ reviving the charges in the future. It would be as if Adams had double jeopardy protection.

As we’ve discussed (see here and here), the dismissal that the Trump DOJ has offered Adams is one without prejudice, meaning that the charges could be reinstated at a later time. This is among the most disturbing aspects of the arrangement. It suggests that President Trump wants to have continuing leverage over Adams in pressuring him to help enforce Trump policies that are unpopular among New York City voters who’ve elected the mayor. It also puts the lie to Bove’s speculation that the Adams’s indictment may have been politically motivated (i.e., punishment by the Biden DOJ for Adams’s having criticized the former president’s lax border and immigration enforcement policies). If Bove truly believed that the Adams indictment was politically motivated, why would he reserve the right to reinstate a it?

What’s intriguing about all this is the likelihood that it is theater.

Adams has been given a gift by Trump. The case against him is sufficiently serious that he could be convicted, despite his lawyers’ insistence (to be expected) that there’s no there there. When prosecutors cut a defendant a break of this magnitude, the last thing you’d expect from experienced defense lawyers — and Adams’s lawyers are pros — is a motion alleging prosecutorial misconduct. In normal circumstances (admittedly, there’s nothing normal here), this would anger the Justice Department to the point that prosecutors would withdraw the dismissal motion, supersede the indictment to add any new charges, and look forward to seeing the accused and his lawyers at trial.

Things are stranger still because the motion to dismiss based on prosecutorial misconduct borders on the frivolous. Courts do not order pre-trial dismissal based on such a claim. The defendant would have to demonstrate that the prosecutors engaged in misconduct to a degree that shocked the conscience, and that there is therefore no possibility of a fair trial. That is a bar so high that courts will usually either dismiss such motions outright or hold them in abeyance until after the trial, so that there is a concrete record from which to determine whether the case was fairly decided.

Here, the 57-page indictment is far more damaging to Adams than anything in the prosecutors’ correspondence. It is no earth-shattering revelation that the SDNY was considering additional charges — that was already known to Adams and his lawyers (as their motion acknowledges). The claimed grand jury violation is overstated: merely referring to the fact that grand jury proceedings are (or were) ongoing is not the same thing as revealing the substance of the evidence derived (and, again, the fact that grand jury proceedings were ongoing was already known). And it is not a bombshell when prosecutors express the belief that they have a strong case; ethically speaking, they would not have indicted unless they believed that Adams should be convicted and that the proof was strong enough to convince a jury to find him guilty.

So why make a dismissal motion that has no chance of success and might infuriate the Justice Department? Because, I suspect, in this highly unusual situation, the new motion pleases the Justice Department immensely.

Again, the challenge the Trump DOJ has at the moment is to convince Judge Dale Ho, a Biden appointee, to grant leave to dismiss under Rule 48(a). As I’ve explained in the posts linked above, the main obstacle on that score is the without prejudice term. Even if Judge Ho believes that there is a corrupt deal between Trump and Adams, he has no authority to force DOJ to prosecute Adams. The principal reason the rule requires leave of the court for dismissal is to protect the defendant from harassment by prosecutors. If the government reserves the right to reinstate charges at a later time — and especially if it does so over the defendant’s objection — that is a valid reason for the judge to deny leave to dismiss. Such a denial would put the government to the choice of deciding either to (a) proceed with the prosecution, or (b) accept that the court deems the dismissal with prejudice, such that the charges cannot be reinstated.

Not surprisingly, in its allegation of prosecutorial misconduct, Adams’s motion trains its fire on the (now former) SDNY prosecutors, Sassoon and Scotten (whose letter to Bove is described by the mayor’s lawyers as “unhinged”). The motion goes out of its way to paint Bove, who is now running the case and is responsible for the government’s dismissal motion, in a heroic light: as the seasoned DOJ official and former SDNY prosecutor who has become the recipient of baseless SDNY fury for having the gumption to suggest that his former office was too aggressive in charging Adams.

Even though the president would like to hold leverage over the mayor, the DOJ may realize — especially with Judge Ho having appointed renowned lawyer Paul Clement to advise him on the original dismissal motion — that the without prejudice term might not be defensible. Were the judge to reject dismissal without prejudice over the DOJ’s objection, that would appear to be a court finding that the Trump–Adams dismissal arrangement was corrupt. Neither the Trump DOJ nor Adams wants that.

Call me a cynic, then, but I suspect that Adams’s lawyers filed their new motion in order to give the Trump DOJ an off-ramp.

Thanks to the motion, Bove can now say that colorable misconduct claims have been raised by the mayor’s lawyers about the SDNY prosecutors (but not about Bove, of course) and that therefore the DOJ now believes the dismissal must be with prejudice. Main Justice could thus join Adams in agreeing that the dismissal motion forecloses the reinstatement of the charges against Adams.

Such a shift in the DOJ’s position would not be giving away much because chances are slim that Judge Ho is going to endorse the without prejudice term. Nevertheless, such a change would mean that Ho had scant reason to refuse leave to dismiss — Adams’s rights would be fully protected. Ergo, it would increase the likelihood that the judge will approve the dismissal despite caterwauling from Democrats, left-leaning legal experts, and others opposed to both Trump and Adams. And best of all from the standpoint of Bove, Bondi, and the Trump administration: They could blame the loss of a future corruption prosecution against Adams on the supposed misconduct of the SDNY prosecutors, whose letters stung Main Justice.

Put another way: I can’t imagine that Mayor Adams’s lawyers would have filed a motion to dismiss based on alleged prosecutorial misconduct unless they were confident that the motion would be well received by the Trump Justice Department.