On The Sudden End Of The Eric Adams Prosecution

Back in September, DOJ prosecutors in the Southern District of New York indicted Mayor Eric Adams on corruption charges. The indictment came shortly before the election, and at a time when Adams was making noises that he would cooperate with a new President Trump’s efforts to step up enforcement of the immigration laws. At the time I had two posts on the subject, one on September 26 titled “Who Is More Corrupt, Eric Adams or the Biden/Harris DOJ/FBI?”, and the second on September 27 titled “More On The Adams Indictment.” My general comment then was that the indictment was “shockingly thin,” and I concluded (in the September 26 post):

At this point, it is a safe bet that anything the DOJ/FBI is doing in the political sphere is corrupt. Adams may well also be a little corrupt, but nothing remotely at their level.

A few days ago, on February 11, Acting Deputy Attorney General Emil Bove instructed the SDNY to dismiss the Adams indictment. The next day, February 12, the Acting U.S. Attorney for the Southern District of New York, one Danielle Sassoon, responded with a rather extraordinary 8 page single-spaced letter of resignation, addressed to new Attorney General Pam Bondi. Sassoon’s letter speaks from a self-proclaimed pinnacle of righteous indignation. The letter came somewhat as a surprise because Sassoon was not some Biden holdover, but rather had been newly designated by Trump to hold the position while awaiting confirmation of his recent nominee (Jay Clayton); and she came with seemingly impeccable conservative credentials.

Sassoon’s resignation letter was promptly followed by extensive commentary from conservative and centrist outlets supporting her position. As examples, see the Wall Street Journal editorial page here (“the real story speaks well of the prosecutors but sends a rotten message to any lawyer who might want to join the Trump Administration”); the editors of the Free Press here (“The scope and nature of the interventions of the Trump Justice Department are shocking. . . .”); David Post at the Volokh Conspiracy here (“the odious and reprehensible Eric Adams deal”); and Ed Whalen at National Review here (“In an act of courage and integrity, Danielle Sassoon, Donald Trump’s own hand-picked interim United States Attorney for the Southern District of New York, resigned yesterday. . . .”).

One of the only commenters I have found standing up for the position of the Trump DOJ on this dispute is Josh Blackman, also writing at the Volokh Conspiracy. He has had three posts there on the subject, here on February 13, here on the 14th, and here on the 15th.

On this one, I come down strongly on the side of Blackman and of the Trump DOJ. The issues are important, and reflect a fundamental difference of views about the Constitution and about the role of criminal prosecutions in the political process. I also want to make a few points that go beyond what Blackman has already said.

But let’s start with Sassoon’s letter. Basically her position is that here in the Southern District of New York, we are a-political, and we make completely impartial charging decisions based on nothing more than the law and the facts:

When I took my oath of office . . . I vowed to well and faithfully discharge the duties of the office on which I was about to enter. In carrying out that responsibility, I am guided by, among other things, the Principles of Federal Prosecution . . . and your recent memoranda instructing attorneys for the Department of Justice . . . not to use the criminal enforcement authority of the United States to achieve political objectives. . . .

The Adams indictment, according to Sassoon, had nothing to do with politics, and is well-supported in fact and law. And therefore it follows, according to Sassoon, that she cannot in good faith seek its dismissal:

The Government Does Not Have a Valid Basis To Seek Dismissal. . . . Mr. Bove’s memorandum identifies two grounds for the contemplated dismissal. I cannot advance either argument in good faith.

Well, Ms. Sassoon, have you thought about this as a justification for dismissal?: The President — and through him, the Attorney General and Deputy Attorney General — hold the power of what is called “prosecutorial discretion” under the Constitution. They can decline to prosecute any matter that in their judgment is not worth the resources devoted to it or does not on balance and in their judgment advance the public good. And they have exercised that judgment. QED.

Here is Blackman’s articulation of the dispute, from his February 14 post:

What we have here are two very different conceptions of the federal criminal justice system. On the one hand, Sassoon and her colleagues defend the traditional notion that "independent" prosecutors have the power to define what is in the public good. They can define when public officials abuse their power, and can punish those actions with criminal sanctions. . . . Those defending Sassoon are invested in the DOJ club, and the continuation of its longstanding practices. President Trump, through Bove, articulate[s] a different perspective. The President, as head of the executive branch, can make his own determination of what is in the public good, and determine when public officials are abusing their power. Trump, perhaps more than any living person, is uniquely situated to make this sort of judgment.

Blackman’s February 13 post continues with a long list of the recent disasters that have befallen the so-called “Public Integrity Section” of the Justice Department in its efforts to bring perfect justice and fairness and honesty to the world of politics. The Public Integrity Section is that part of Justice that was headed by none other than Jack Smith from 2010 to 2015. Blackman’s list of disasters begins chronologically with the prosecution of John Edwards, that ended in 2012 with a hung jury. The prosecutor was none other than Jack Smith. Next we have the prosecution of Virginia Governor Bob McDonnell, again with Jack Smith as lead prosecutor. McDonnell was convicted by a jury, but that conviction was reversed by the Supreme Court in 2016 — unanimously. Then there was the so-called “Bridgegate” prosecution of members of the Chris Christie administration, Kelly v. U.S., reversed by the Supreme Court in 2020, again unanimously. Two members of the Andrew Cuomo administration in New York, Percoco and Ciminelli, got prosecuted and convicted by Justice in connection with a scandal involving a stadium for the Buffalo Bills; the Supreme Court reversed unanimously in 2023. The Supreme Court has taken another DOJ public corruption matter this term — Koussis v. U.S. — and Blackman predicts another reversal.

Blackman makes some excellent points. But there are many more. Here are a few:

• Where did the federal DOJ get the idea that its mission includes policing political corruption among state and local officeholders? That certainly is not among the enumerated powers of the federal government to be found in the Constitution. If you think that DOJ meddling in state and local affairs on this subject goes back to the beginning of the Republic, you would be wrong. In fact, the federal government only got into this business in any significant way in the late 1960s and early 1970s, when a U.S. Attorney for New Jersey named Herbert Stern prosecuted several state officials under old statutes not previously used for this purpose, and the Third Circuit upheld him. See a Wikipedia summary on this subject here. Meanwhile, all the states have anti-bribery statutes, and they have prosecutors and courts and juries. Maybe there is an argument for the feds to step in in some truly extraordinary case, where the entire state and local infrastructure had been compromised by vast corruption, but that is not the Adams case at all. Why is DOJ so concerned if Alvin Bragg can’t be bothered? How is it that nobody in the federal DOJ even gives a moment’s thought to whether it is appropriate to use federal power against a co-sovereign official on a relatively minor allegation of corruption. Why should this not be left to the local authorities?

• Then there is the question of the vast distinction between exercise of prosecutorial discretion to bring a case, versus exercise of discretion not to bring a case. The most important single fact about the world of criminal prosecution is that 99.9% (or more) of crimes never get prosecuted. That fact arises from the combination that there are way too many things that have been made crimes (many thousands at the federal level — you are almost certainly a federal criminal), and that most crimes are insignificant or trivial (even though some statute may impose a draconian penalty after conviction). Because of this fundamental disparity, the decision not to bring a case is almost always not an important decision, while the decision to bring a case is always an important decision.

• Ms. Sassoon asserts the proposition that the Adams charges came up through a completely fair and a-political process. (“[T]he charges in this case were recommended or approved by four experienced career prosecutors, the Chiefs of the SDNY Public Corruption Unit, and career prosecutors at the Public Integrity Section of the Justice Department.”). How dumb is she? Assume that that is all true, and that all of the people she mentions are completely above politics. The fact remains that if Adams was acting as a Democratic Party/Biden Administration team player, the charges likely would never have gone anywhere. Clearly, somebody high up made a decision at some point that these charges were sufficiently important to warrant assigning four career prosecutors to investigate and prepare charges. If Adams had been in favor with the right people, those people never would have been assigned, and charges would never happen. And if he had been a team player, any charges that did get off the ground could still have been quietly scuttled at the top levels of the Department before indictment.

• And then there’s the question of all the other charges that never get brought. How is it that nobody at DOJ has ever been interested in Biden family corruption, or Clinton corruption? (The cases actually brought against Hunter Biden involved taxes and lying on a gun application, not corruption or bribery. Even if you assume that a prosecution against Joe while he was out of office would have been wrong politically, bribery charges against Hunter and Jim and other Bidens were open and obvious and were allowed to have their statutes of limitations quietly expire.). Did Ms. Sassoon ever speak up about this? Did any other lawyer at DOJ speak up or object? I mean, the FBI was thoroughly corrupt, but at least they had a handful of whistleblowers over there. Among the DOJ lawyers, none that I know of.

Overall, I’m not saying that the dropping of the Adams prosecution was perfect. I would have preferred if Mr. Bove had said something more like “The prosecution of Eric Adams is not worth federal prosecutorial resources, and you are directed to drop it. The state and local authorities may further pursue it if they see fit.” However, on balance, the Trump Justice Department has by far the better side of this matter.