The Trump Justice Department is directing the U.S attorney’s office for the Southern District of New York to dismiss its prosecution of Mayor Adams. As an alumnus of that office I hope, and expect, that they will resist that demand, but if they fail to do so or the attorney general (or her designee) steps in to try to dismiss the case, court approval of the dismissal is still required. And there is recent precedent for a court in these circumstances to examine whether the motion to dismiss a criminal prosecution represented an abuse of power.
The history of the Southern District office demonstrates that where warranted it has prosecuted politicians from both parties no matter who is in the White House. When I was in the office in the early 1970s it prosecuted the former Republican attorney general and secretary of commerce despite the fact that Richard Nixon, a Republican, was president. Other examples include the prosecution of the Democratic speaker of the state Assembly when a Democrat was president and, most recently, prosecuting the powerful Democratic senator from New Jersey, Bob Menendez, when Joe Biden was president.
Adams is, of course, a Democrat and was indicted when a Democrat was in the White House. Without any evidence he has claimed, however, that his indictment was retaliation for his criticism of the Biden administration’s handling of the influx of migrants. The acting U.S. attorney selected by the Trump Justice Department totally debunked this claim in a recent filing with the court by pointing out, among other things, that the investigation had begun more than a year before the indictment.
Moreover, the U.S. attorney’s office has stated that it is also actively investigating additional potential crimes by the mayor. There thus appears no legitimate basis for the Justice Department suddenly to turn around and say this prosecution was unjustified. The notion that this long running investigation which produced an indictment nine months before the Democratic primary somehow is improper interference in that election — as apparently the Washington Justice Department is suggesting — is in a word, ludicrous.
President Trump, however, has indicated support for Adams and his retaliation claim. Adams has also indicated some support for the president’s efforts to massively deport migrants.
What should happen if the Justice Department moves to dismiss the indictment. Judge Emmet Sullivan in Washington demonstrated what the court in the Adams case should do when he confronted potential improper political interference in the government’s 2020 motion to dismiss the charges against Michael Flynn, despite his having previously pled guilty.
Sullivan appointed a respected former federal judge to argue against the motion. In doing so he recognized that when in the 1940s the Federal Rules were changed to require court approval of government motions to dismiss charges it meant that judges should not be required to simply rubber stamp such motions. For example, they should not be put in the position of having to approve dismissals that were the product of corruption or improper political pressure.
When Sullivan’s appointee filed his brief he was scathing in his conclusion arguing that the “ motion seeks to place this court’s imprimatur on a corrupt, politically motivated favor for the president’s friend and ally.” While before a decision on the motion Trump pardoned Flynn this meant Flynn could not argue that the government’s dismissal of the case meant he was innocent.
If the judge in the Adams case follows Sullivan’s course of action I do not know what the result will be. We do know, however, that the new attorney general will do the president’s bidding. If there was any doubt about that, two of her actions on her first day in office demonstrate that her loyalty is to Donald Trump rather than to making sure that justice is administered fairly and impartially.
She first ordered the investigation of federal and state prosecutors who pursued wrongdoing by Trump. She then moved to disband the FBI group tasked with preventing foreign influence in our elections, opening the door to, for example, Russia aiding Trump as they did in 2016.
In a democracy it is critical that the public have confidence that the criminal justice system operates in a fair and impartial manner. We need the judiciary to do what it can to make sure this is true. Using the court’s power to make certain that this is true in the Adams case would be an important part of this responsibility.
Davis is a former assistant Watergate special prosecutor and former assistant secretary of the treasury.