Today Manhattan Federal Judge Dale Ho faces the Justice Department’s request to dismiss the pending criminal indictment against Mayor Adams, with the request to be able to reinstate the charges in the future.
Recent friend-of-the-court filings have requested the judge to appoint a special prosecutor to take over the case — an argument echoed in the media and by politicians rightfully disturbed about the DOJ’s explosive about-face after Donald Trump’s election. And the words “special prosecutor” are so imbued in the public consciousness and national conversations that this sounds like something that can be done. But there is no legal authority that permits this.
Special prosecutors must be requested by the attorney general. Courts have no roving commission to appoint people to prosecute cases they think should be tried. If the DOJ refuses to go forward, there is no one else coming. Asserting otherwise creates false expectations that will be dashed when Ho fails to do what he cannot do.
There is one exception. A court has the inherent power, and an express grant of authority by a federal rule, to appoint a special prosecutor in contempt of court cases where the DOJ refuses to prosecute. This practice was approved by the Supreme Court in 1987.
More recently, in 2019, a Manhattan federal judge appointed a special prosecutor in the controversial case of environmental lawyer Steven Donziger. Donziger had allegedly violated the court’s orders in a decades long civil case against Chevron. Civil libertarians roundly denounced the use of a private, for-profit law firm, with ties to the oil industry, to go after the activist attorney.
In the end, higher courts upheld the aggrieved judge’s power to appoint special counsel to prosecute. But this authority is explicitly limited to a court’s power to independently enforce its own orders. It is a power a court must have when, to take the clearest example, it is the DOJ that disobeys an order. It would be meaningless for a court to request the DOJ to prosecute a contempt against itself. But this tightly-cabined rule has no application to a regular criminal case. No one familiar with the law can credibly claim otherwise.
Proponents of continuing the Adams prosecution have correctly noted that a court may deny a dismissal if the court finds it is not in the “public interest.” But this term, used in this context, is a legal term of art. It is the executive branch that is charged with the duty to determine what is in the public interest when it comes to prosecutions. That is a consequence of federal elections.
Ho has already acknowledged as much yesterday. And even if the court finds that the DOJ is acting in bad faith for a legally-improper purpose — an allegation credibly made by the former prosecutors in charge of the case — denying the motion to dismiss on this ground is without any legal effect. The DOJ prosecutors will refuse to go forward. Ho cannot compel them to prosecute the case. That power is reserved to the executive branch.
The case would lie fallow for the next 70 days as the federal speedy trial clock ticked down to zero — requiring the dismissal of the charges, at the request of the defendant. Kicking this can down the road when the outcome is inevitable is not sound practice for anything.
In truth, Ho’s options are extremely limited. He can grant the DOJ’s motion to dismiss the charges without prejudice — meaning that the case can be revived at any point. That would effectively hold the threat of re-prosecution over Adams’ head and make his liberty contingent upon his satisfying the future whims of Trump’s DOJ. This is the very quid pro quo that good government advocates fear.
Alternatively, he may be able to dismiss the charges with prejudice — terminating the case for good. The latter option would cut the string of the Adams yo-yo attached to Trump’s finger. Indeed, the very purpose of giving a court the right to dismiss with prejudice is to prevent vindictive or improper reinstatement of charges. This would deprive the DOJ of the power to punish Adams should he displease them, but it would also grant Adams an even greater boon than he would otherwise receive.
At this fraught time in history, courts are fighting to preserve the authority they do have against an executive determined to impose his will upon them. It is not the time — if it ever was — for the courts to claim authority they do not have.
Kuby is a New York based criminal defense and civil rights lawyer. He defended Steven Donziger in the 2019 court-ordered special prosecution.