The independent lawyer tasked with presenting arguments to Manhattan Federal Judge Dale Ho as he weighs tossing the case against Mayor Adams on Friday recommended permanent dismissal of the charges, in part finding that even the appearance of the Justice Department’s motion creating a conflict for the mayor is “deeply troubling.”
Last month, the DOJ asked Ho to dismiss the case without prejudice — meaning it could be brought again — to avoid it interfering with Adams’s reelection campaign and so that the mayor could assist the Trump administration’s immigration enforcement aims unimpeded, among other factors. That provision touched off widespread criticism.
Paul Clement nodded to those concerns in his filing.
“A dismissal without prejudice creates a palpable sense that the prosecution outlined in the indictment and approved by a grand jury could be renewed, a prospect that hangs like the proverbial Sword of Damocles over the accused,” Clement wrote.
“Even the appearance that the prospect of re-indictment would cause public officials to be more attendant to the executive branch than to constituents is deeply troubling and raises serious accountability concerns,” he later wrote.” A dismissal without prejudice fuels those concerns by expressly preserving the possibility of re-indictment.”
After Adams agreed to those terms at a court hearing, the judge appointed Clement to file arguments testing the motion to give him another side to consider, including what would happen if he denied the DOJ’s motion. Clement served as solicitor general from 2005 through 2008 under President George W. Bush.
Clement said if Ho were to deny the government’s motion, he could not constitutionally force prosecutors to proceed with the case, which could end up seeing a dismissal made necessary anyway by them neglecting to make it ready for trial on time.
The special attorney said the judicial branch had “a vital, but limited, role” in determining whether a case brought by the executive branch should be dismissed, and that all roads to be explored, including the separation of powers principles constraining the judge’s options “lead to dismissal with prejudice.”
“Prosecutorial discretion can play an important role in promoting individual liberty. No matter how clearly someone has violated a federal criminal statute, neither the courts nor the
citizenry can compel the executive to initiate a criminal prosecution,” he later wrote.
The government’s dismissal motion, filed by Trump’s acting No. 2 at the DOJ Emil Bove, ignited a legal and political firestorm, with Ho facing calls to appoint a special prosecutor from former federal judges, legal scholars, and ethics experts.
The DOJ motion came after the Manhattan prosecutors who had been handling the case withdrew from it or quit rather than obey orders to ask Ho to dismiss it, at which point it was transferred to Washington, D.C.
The interim chief of the Southern District of New York prosecutor’s office, former Acting Manhattan U.S. Attorney Danielle Sassoon, who resigned, in a letter to U.S. Attorney General Pam Bondi said prosecutors were preparing to file more charges against the mayor that would accuse him of trying to hide his crimes from the FBI and ordering others to do the same, which Adams has denied.
Sassoon told Trump’s new AG that she couldn’t satisfy the order to drop the case given the “dangerous precedent” it would set and said it stemmed from what amounted to a “quid pro quo” between the mayor and the Trump administration, one that would see Adams let off the hook in exchange for giving the Trump administration free rein to carry out its policy objectives.
The veteran federal prosecutor, a Republican who last year secured the conviction of prolific crypto conman Sam Bankman-Fried, was one of at least seven DOJ staffers to step down in Manhattan and Washington, D.C. after the people Trump has placed in charge of the federal government’s law enforcement arm intervened in the case. Adams has cited their protest resignations in his bid to get the case permanently dismissed.
The former federal judges who wrote to Ho after the motion, calling on him to hand the case to a special prosecutor, said, “The Justice Department seeks to use this Court as the fulcrum for its leverage against Mayor Adams. If so, the Court should not allow it.”
Adams, his attorneys, and Trump’s DOJ leaders have denied the existence of a quid pro quo, claiming the issue of the mayor being able to assist in Trump’s immigration crackdown was discussed as a matter of national security.
Clement’s recommendation is good news for the mayor. After the DOJ’s dismissal motion, the mayor separately asked Judge Ho to dismiss the case with prejudice — ergo, kill it for good — arguing that DOJ staffers who quit rather than stand by the effort to absolve him of charges had engaged in prosecutorial misconduct and destroyed any presumption of innocence he had. Ho has also ordered briefs from the DOJ due Friday opposing that effort, should it choose to stick to its effort to retain the possibility of refiling the case in the future.
Adams has pleaded not guilty to bribery, wire fraud, conspiracy, and two counts of soliciting contributions from foreign nationals in the indictment filed in September. It accuses him of peddling his political influence to wealthy Turkish officials and businessmen starting a decade ago when he was Brooklyn borough president.
The feds say Adams accepted luxury travel and hotel stays worldwide and solicited illicit campaign donations from his foreign benefactors that were funneled through U.S. citizens. Adams partly repaid the bribes by forcing FDNY officials to sidestep safety precautions to prematurely open a Midtown skyscraper housing Turkey’s consulate in time for a visit by Turkish President Recep Tayyip Erdoğan, according to the case.
As the legal saga drags on, Adams has refused calls to resign. Four of his deputy mayors quit, whom he’d installed to boost trust in his office after his indictment, and Gov. Hochul announced plans to install new “guardrails” that would ramp up oversight of his office. He’s facing a growing crowd of competitors in this year’s mayoral race, including former Gov. Andrew Cuomo and City Council Speaker Adrienne Adams, who announced their bids this week.
The mayor’s job approval ratings have hit an all-time low, with a Quinnipiac University poll released this week showing only 20% of voters are happy with the job he’s doing, and 56% think he should resign.