In ruling the department may not revive the case, Ho called it ‘unprecedented and breathtaking’ to use the dismissal of charges as leverage for help on immigration policy.
In ruling the department may not revive the case, Ho called it ‘unprecedented and breathtaking’ to use the dismissal of charges as leverage for help on immigration policy.
A federal judge in Manhattan has granted the Trump Justice Department’s motion to dismiss the corruption indictment against New York City Mayor Eric Adams. The judge, however, has rejected the DOJ’s effort to hold the potential reinstatement of the charges over Adams’s head like a sword of Damocles. The dismissal of the case is with prejudice, meaning the corruption charges in the indictment may not be revived in the future.
Judge Dale Ho, a Biden appointee to the court in the Southern District of New York (SDNY), explained his ruling in a 78-page opinion and order issued on Wednesday morning.
Beyond deciding to give the dismissal preclusive effect against possible future prosecution, Judge Ho thoroughly refuted the Trump DOJ’s unfounded claims that the Adams prosecution was tainted by “appearances of impropriety” and amounted to “election interference.” (The mayor is up for reelection this year, though his prospects appear dim.)
To the contrary, Ho found that the SDNY prosecutors — including interim U.S. Attorney Danielle Sassoon, the Trump appointee who resigned over the DOJ’s order that the Adams case be dropped — acted with integrity and consistent with “all appropriate Justice Department guidelines.” Ho added, “There is no evidence — zero — that they had any improper motives.”
Moreover, the judge concluded that the “election interference” claim floated by Trump DOJ official Emil Bove “lacks any support in Justice Department guidelines or past practice.” Instead, Ho found that the “timing” of the case was “entirely consistent with prior public corruption prosecutions.”
Hence, Ho discerned that DOJ’s claimed “appearances of impropriety” rationale for dismissing the case without prejudice was “not just thin, but pretextual.” The pretext is to cover the administration’s attempt to induce Adams, in his official capacity as mayor of a heavily Democratic city, to carry out the immigration enforcement policies of the Trump administration, which are deeply unpopular among Adams’s constituents.
On that score, DOJ had insinuated that the corruption indictment was hindering Adams’s ability to facilitate Trump immigration policy. From a legal perspective, Ho found it “unprecedented and breathtaking” that the government could use the dismissal of criminal charges against an elected state official as leverage to induce the official’s assistance in federal immigration policy. From a factual perspective, Ho concluded that DOJ’s claim was baseless: Adams himself had insisted that the indictment was not impairing him in the conduct of his duties.
Nevertheless, the record also indicates that, after the dismissal motion was made, Adams began allowing Trump immigration officials to operate at the Rikers Island jail complex, which appears contrary to New York City’s law and sanctuary policies. Ho thus concluded: “Everything here smacks of a bargain: dismissal of the Indictment in exchange for immigration policy concessions.”
For these reasons, Ho rebuffed the without prejudice dismissal gambit.
This is the right decision, as urged in National Review’s editorial back in February. I’ve also opined that dismissal with prejudice was the proper course, both when the controversial dismissal was announced, prompting the resignations of the SDNY and Justice Department public-corruption prosecutors on the case (see here and here); and again most recently when a recommendation that this course be followed was made to Judge Ho by Paul Clement, the well-regarded former Bush 43 DOJ’s solicitor general, whom Ho drafted as an amicus to advise him on the case.
Ho correctly concluded that he had very limited discretion under Rule 48(a) of the Federal Rules of Criminal Procedure, which governs dismissal. The rule mandates that the Justice Department obtain “leave of court” to dismiss a case that has been formally brought in court (by grand jury indictment or a criminal information filed by the district U.S. attorney). Nevertheless, under the Constitution’s separation of powers principles, the judiciary has no authority to compel the executive to proceed with a prosecution that it has decided to abandon. What the court does have power over is the effect of the dismissal on potential future criminal proceedings.
The rule, enacted in the middle of the last century at the Supreme Court’s urging, requires the prosecutor to seek leave of court in order to ensure that the dismissal is not sought for an improper purpose — such as to obtain an advantage over the accused through the prospect that the charges will be revived at a future point more advantageous to the government (or even to exhaust the accused’s resources by serially dismissing then reinstating charges). The judiciary has authority to guard against such prosecutorial abuse by granting dismissal but declining the without prejudice proviso. That is, the judge can dismiss with prejudice, meaning the dismissal effectively carries double jeopardy protection.
The order that the case be dismissed was given by the aforementioned Emil Bove, who at the time was the acting deputy attorney general. (He is now the principal aide to the since confirmed deputy attorney general, Todd Blanche, Bove’s former law partner with whom he represented President Trump as a private defense lawyer.) On February 10, when he ordered that the corruption case be dropped, Bove informed the stunned SDNY prosecutors that he was acting in consultation with Attorney General Pamela Bondi, who had been confirmed five days earlier.
Bove’s order provoked a thorough response from Danielle Sassoon, the SDNY’s then-acting U.S. attorney, dismantling Bove’s claims. It appears that Sassoon’s appeal to Bondi for a meeting to discuss the matter was ignored, and Sassoon resigned. So did Hagan Scotten, the lead SDNY prosecutor on the case, who sent Bove a stinging letter of his own.
When the Sassoon and Scotten letters went public, Adams — who had previously expressed no objection to the Trump DOJ’s without prejudice caveat — moved for the case to be dismissed with prejudice over what he framed as outrageous prosecutorial misconduct by the SDNY lawyers. Naturally, Adams’s motion covered Bove in glory while attacking the prosecutors who had brought the case.
By then, the Trump DOJ was well aware, given the harsh reaction on the right and the left to its dropping of the Adams corruption charges, that Judge Ho was unlikely to agree to dismissal without prejudice. Consequently, I theorized at the time that the Trump DOJ would join Adams in contending that the SDNY prosecutors’ letters, rather than DOJ’s own machinations, necessitated dismissal with prejudice. In the event, DOJ tacitly agreed with Adams by not objecting or otherwise responding to his dismissal-with-prejudice motion — i.e., allowing his frivolous claims about the SDNY prosecutors to stand unrebutted.
In his ruling, Ho noted that “DOJ has not opposed [Adams’s dismissal-with-prejudice] motion, effectively waiving any objection to permanent dismissal of this case.” The court made abundantly clear, however, that its ruling was based, not on the SDNY prosecutors’ letters but on DOJ’s gamesmanship in seeking leverage over the mayor.
Although the Trump DOJ will not like Judge Ho’s opinion, any appeal would be hopeless — DOJ’s dismissal-without-prejudice position is indeed meritless, and Ho is right that DOJ should not be heard to complain now when it did not object to Adams’s motion. As for Adams, he now gets the dismissal he coveted with no extortionate strings attached. Of course, he was unlikely to be much help to the Trump immigration enforcement effort: The mayor’s approval rating is approaching single-digit territory, and he is on track to be thumped in the upcoming June 24 primary election.