What authority, if any, does the court have to force the Justice Department’s hand?
What authority, if any, does the court have to force the Justice Department’s hand?
T he case of Mayor Eric Adams is going to get even uglier.
I’m not talking whether Hizzoner will politically survive the revolt of his fellow Democrats — who were content for New York City to be governed by a mayor under corruption charges as long as he was defending lawless sanctuary policies but are suddenly alarmed about corruption, possibly to the point of ejecting him from office, over his cooperation with Trump administration immigration policies.
No, I’m talking about what will become of the Justice Department’s corruption prosecution of Adams, the one that the Trump DOJ wants to drop on false pretenses and that Adams has been treating as a bullet he’s already dodged.
Not so fast. Dismissal is no sure thing. On the terms offered — “without prejudice” to reindictment at a later time — I think it’s unlikely. Beyond that step, on the question of whether Adams would actually be prosecuted, a constitutional controversy is brewing over what authority, if any, the court has to force the DOJ’s hand.
Background
Recall that last week, Acting Deputy Attorney General Emil Bove, after consulting with newly confirmed Attorney General Pam Bondi, ordered prosecutors in the Southern District of New York (SDNY) to dismiss the indictment, on which Adams faced a maximum 45 years’ imprisonment on charges of bribery and campaign finance crimes, and in which an April trial was scheduled in Manhattan federal court. It is increasingly obvious that Bove was chosen to be the White House’s hatchet man here because, unlike Bondi and Todd Blanche (Trump’s nominee for deputy AG), Bove’s position at the DOJ does not require Senate confirmation hearings. (Assuming Blanche is confirmed, Bove — Blanche’s law partner and fellow private defense attorney for President Trump — will become Blanche’s principal associate DAG.)
When Bove’s order became public, I told you two things were apt to happen. The first was resignations at the SDNY (where I was a prosecutor for two decades — the office is renowned for its aggressiveness and independent streak and sometimes-tempestuous relations with Main Justice in Washington). Second, the Trump DOJ would have a devilish time persuading the court to grant its dismissal motion. The SDNY judge in the case, Dale Ho, is a hard-left Biden appointee whose confirmation Republicans contested but lacked the numbers to block.
The resignations soon followed. So far, they include the SDNY’s Trump-appointed interim U.S. attorney, Danielle Sassoon; the lead SDNY prosecutor on the case, Hagan Scotten; the Trump-appointed acting chiefs of the DOJ’s Public Integrity Section and Criminal Division, John Keller and Kevin Driscoll; and three other Public Integrity Section prosecutors who reviewed and supported the charges.
Looming over the serial resignations was the prerequisite to dismissal under Rule 48(a) of the Federal Rules of Criminal Procedure: Someone at the DOJ must file a motion seeking Judge Ho’s approval. The prosecutors who resigned believed, for good reasons, that Bove’s two-pronged rationalization for the dismissal was both false and corrupt.
It was false because Bove claimed that the Adams prosecution had been politically motivated — essentially, retaliation by Damian Williams, the Biden-appointed SDNY U.S. attorney (who resigned before Trump’s inauguration), over Mayor Adams’s criticism of President Biden’s non-enforcement policies on immigration and border protection. In reality, (a) the investigation began under one of Williams’s predecessors over a year before Adams (theretofore a loyal, pro-Biden Democrat and sanctuary city proponent) complained about Biden; (b) Williams had only minimal involvement in the case; and (c) Sassoon, Scotten, and the other relevant SDNY and Public Integrity prosecutors, whose integrity Bove acknowledged was unimpeachable, maintained that the case was strong and that Adams had been charged because, in their view as experienced investigators, he was guilty. On that score, Bove conceded that he had not assessed the facts and the pertinent law; that’s an implicit admission that he was in no position to claim the indictment was “politically motivated.”
Bove’s second stated ground for dismissal smacked of a corrupt quid pro quo (quite the irony in a bribery case). He claimed that dropping the case was necessary to induce Adams to cooperate in Trump’s priority of enforcing the immigration laws. Substantively, this is specious: Cities and states can be significantly penalized if they block the execution of federal law; and in New York City, while the mayor has some influence over the police department and the prison system (and has thus reopened a wing of the Rikers Island prison for holding illegal aliens wanted by the feds), important law enforcement decisions are made by the district attorneys (who decide what arrestees get detained and prosecuted, and who do not answer to the mayor). But worse, the Trump DOJ’s dismissal deal with Adams — from the negotiations over which the SDNY prosecutors who knew the case were excluded — provides that the dismissal is without prejudice. That is, the deal is structured to give the Trump administration leverage to extort cooperation from the chief executive of a major city by threatening to reinstate charges against him. (When charges are dismissed with prejudice, that carries protection against future prosecution akin to double jeopardy.)
Consequently, it became a struggle for Bove to find a prosecutor who would be willing to sign a Rule 48(a) motion for leave to dismiss the case, which calls for prosecutors to explain why dismissal is in the interests of justice. Evidently hot to be the second coming of Roy Cohn that Trump has always coveted at the DOJ, Bove transferred control over the case from the SDNY to Main Justice, then gave lawyers in the Public Integrity Section an hour to figure out who among them would put his or her name on the dismissal motion — placing about two dozen prosecutors in fear of being fired for insubordination if they refused. Finally, two of them — Ed Sullivan and Antoinette Bacon — agreed to put their names on the pleading, though in the end Bove himself signed it.
Constitutional Controversy
Hence, the motion for leave to dismiss is now in front of Judge Ho. It is going to ignite a constitutional controversy over whether a court has the authority to refuse to dismiss an indictment when both the government and the defendant agree with the dismissal — and beyond that, over whether the judiciary has the constitutional power to order a prosecution when the executive branch declines to pursue the case.
Prominent former SDNY prosecutors and progressive legal groups have begun submitting friend of the court briefs to Judge Ho. These include three former U.S. attorneys: retired Judge John Martin, who was the SDNY U.S. attorney in the early eighties; Deirdre Daly, who was Connecticut’s U.S. attorney; and Robert Cleary, who served as U.S. attorney for New Jersey and Southern Illinois. The New York Times reports that they have filed a brief encouraging Judge Ho to conduct an extensive inquiry into the true rationale for the dismissal deal. They are joined by Mark Pomerantz, a former SDNY Criminal Division chief (who investigated now-President Trump as a special prosecutor in the Manhattan District Attorney’s Office, though he left before the DA, Alvin Bragg, indicted Trump in the business-records fiasco).
The left-wing group Common Cause goes further. Its lawyer, Nick Akerman (part of the Watergate prosecution team) urges Judge Ho not only to deny dismissal but to supplant the DOJ with a special prosecutor who would press the case — presumably, through trial and, if Adams were found guilty, through sentencing and appeal.
I have great respect for Judge Martin and my former SDNY colleagues Daly, Cleary, and Pomerantz, and I concur in their assessment that Judge Ho should conduct a searching inquiry regarding the agreement that has prompted the Trump DOJ to drop the case. That is essential in light of the condition that dismissal is “without prejudice” to the case’s being reinstated — a condition that appears to be contrary to Adams’s interests even if he has agreed to it. I’ll come back to why that’s appropriate in a moment.
Where I believe the former prosecutors go wrong, however, is in their understanding of the public interest. Whether a prosecution is in the public interest is a political determination to be made by the executive branch. Their assumption that it is a legal determination to be made and enforced by a court — despite the court’s lack of enforcement power — distorts Judge Ho’s proper role in our government of divided powers.
Prosecution: ‘A Quintessentially Executive Function’
In our constitutional system, the decision whether to prosecute, including the decision whether to persist in a prosecution after a case has been indicted by a grand jury (including when, as in Adams’s case, there has not yet been a trial) is an “exclusive and preclusive” executive branch power (to borrow the description of core Article II authority applied by Chief Justice John Roberts in last term’s Trump immunity case). The Court has no prosecutorial power — as Justice Antonin Scalia explained in his trenchant Morrison v. Olson (1988) dissent, “Governmental investigation and prosecution of crimes is a quintessentially executive function.” As such, it is wholly vested in the president.
In requiring leave of the court to dismiss an indictment, Rule 48(a) comes dangerously close to violating separation of powers because the court has no authority to prosecute — neither directly nor by ordering the executive branch to persist in prosecuting a case it has decided to abandon. The only way the rule can be squared with constitutional principles is by being understood as a due process protection. That is, the rule prevents the government (a) from tactically dismissing a case, such that it could be revived at some later point more advantageous to the prosecution; or (b) from carrying out serial dismissals and reinstatements in order to harass the defendant and exhaust his resources.
That is what the Supreme Court explained in Rinaldi v. United States (1977). Moreover, as the Ninth Circuit recounted in United States v. Gonzales (1995), the Supreme Court itself designed Rule 48(a) toward that end. When the rule was proposed, the idea was to require the prosecutor to state the reasons for dismissal. This was a departure from the common-law rule that the prosecutor had unrestricted authority to dismiss charges without consent of the court. The Supreme Court (which has an important role formulating federal procedural rules) modified the proposed rule to condition the government’s authority to dismiss on its obtaining of “leave of court.” With that amendment, Congress enacted the rule (which is its current form). As the Ninth Circuit elaborated, the purpose was “to grant judges discretion to prevent the government from using its discretionary power to dismiss indictments for purposes of harassment.”
Thus understood, the rule makes constitutional sense. The court has authority to protect the due process rights of the defendant — i.e., to prevent the prosecutor from using the court’s proceedings to undermine the defendant’s right to a fair trial. If the government tries to dismiss charges while reserving the right to revive them for abusive reasons (and especially if the defendant objects), the court has the power to deny the dismissal motion. That puts the executive, then, to the choice of dismissing with prejudice (i.e., conclusively, with no ability to revive the charges) or to elect to proceed with the prosecution. This is why I believe my former SDNY colleagues are correct that Judge Ho must conduct a searching inquiry — but that’s to protect Adams, not to protect the public.
Beyond that, a court has no power to force the prosecution to persist in prosecuting a case it has decided to drop. Judge Ho could condition the grant of dismissal on the DOJ’s agreement to drop the “without prejudice” provision. Or he could perhaps rule that the dismissal is with prejudice if the DOJ objects. Given that the Supreme Court’s reason for the “leave of court” requirement is to clarify that a judge need not tolerate such prosecutorial abuse, I do not see any convincing argument that Ho lacks that authority. But that’s as far as it goes; the court cannot make the DOJ continue to prosecute Adams.
The Public Good
I recently had occasion to relate why the Framers believed separation of powers was the real safeguard of individual liberty, more so than the Bill of Rights. Progressives, however, do not adhere to separation of powers principles. They believe there is a “public good” that should be insulated from politics, vigilantly guarded, instead, by judges and bureaucrats — altruists all, who can be trusted to protect the public notwithstanding that they are unaccountable to the public.
This line of thinking is illustrated by the proposals of Common Cause. Its Nick Akerman said, as the Times put it, “that because the government had agreed with Mr. Adams to dismiss the indictment, no one was representing the public before the judge” (emphasis added).
That’s just wrong. The Justice Department represents the people of the United States. By electing Donald Trump president, “the public” writ large — i.e., despite the 77 million people who voted against Trump — reposed in him the public’s prosecutorial power, which he has delegated to Bondi, Bove, and his other subordinates. There is no metaphysical “public” whose interests are not being served because President Trump’s idea of the public good does not align with that of Common Cause. In this instance, I vigorously disagree with the president and his minions, too, but the public didn’t elect me.
Neither is Judge Ho a guardian of some airy progressive notion of a public interest untainted by politics. Ho’s principal job is to conduct a fair proceeding in which the due process rights of the defendant, Adams, are protected against overbearing government action. If Adams is being extorted by the dismissal deal, despite his ostensible consent to it, the judge need not endorse the “without prejudice” term. But Ho lacks authority to compel the government to prosecute if the Trump DOJ is determined to drop the matter.
Common Cause (echoing some Democrats) also suggests that Ho appoint a special prosecutor to put Adams on trial if the DOJ refuses to do so. A judge, however, cannot endow a third party with power that the court itself lacks. The power to prosecute belongs solely to the Trump administration; since the power is not Ho’s to exercise, it is also not his to delegate to anyone else. It’s just not his call.
The Real Checks on Executive Abuse of Power Are Congressional, Not Judicial
If Judge Ho invokes Rule 48(a) as a pretext not only to deny the dismissal motion but to order the DOJ to prosecute Adams — or to appoint a lawyer outside the executive branch to take up the case as a special prosecutor — we will have a raging constitutional controversy. And in the end, Trump and his Justice Department will win, even if, as a matter of cosmic justice, they deserve to lose.
Remember this lesson about lawfare: In our constitutional system, the principal checks on executive power — even in the context of abuse of prosecutorial power — are in the arsenal of Congress, not the judiciary. That is very unsatisfying because Congress, unlike a judge, never speaks with one voice. In our hyper-partisan era, few members of an incumbent president’s party have been willing to condemn that president’s corrupt acts. Here, to pressure the Justice Department and the administration, the Senate could decline to confirm the president’s appointees (especially for DOJ posts), Congress could decline to act on the president’s policy priorities, or — if things got bad enough — it could impeach executive officers, right up to the president. By contrast, all the court can really do is protect Adams from prosecutorial abuse, even though he is a well-informed participant in a scandalous deal he calculates will work to his benefit.
That the system’s key congressional players are derelict in their duty does not alter the system. The Adams dismissal is a disgrace. If there is to be comeuppance for it, though, that will have to be in a political response. The judiciary cannot prosecute the mayor.