The End Of The Eric Adams Prosecution : Holier-Than-Thou Federal Prosecutors

Since my post a few days ago about the demise of the Eric Adams prosecution, controversy has continued to swirl around the matter. On the side supporting the action of the Trump/Bondi Justice Department, several new voices have emerged to join what were previously the lonely cries of a handful of people like myself and Josh Blackman. These new voices include James Copland and Rafael Mangual (of the Manhattan Institute), writing in an op-ed in the Wall Street Journal on February 18; and Alan Dershowitz in a column in the New York Post on February 19.

On the other side of the argument, an ex-colleague of mine sends me a copy of an “open letter” dated February 17, and signed by a gigantic list of well over 1000 former federal prosecutors. This letter essentially adopts the arguments set forth in the resignation letter of ex-SDNY US Attorney Danielle Sassoon, including echoing some of her language. A fair description is that these guys adopt a holier-than-thou attitude, claiming to be wholly pure and above politics and devoted only to the “facts and law.” Here are some excerpts:

As prosecutors, we were rightly prohibited from making criminal charging decisions based on someone’s political association, activities or beliefs, or because of our personal feelings about them. We knew it was impermissible to treat a defendant more leniently just because they were powerful or well-connected, or more harshly because they were not. We were taught to pursue justice without fear or favor, and knew our decisions to investigate and charge should be based only on the facts and the law. . . . Against this backdrop, we have watched with alarm as these values have been tested by recent actions of the Department’s leadership. Some of you have been ordered to make charging decisions based expressly on considerations other than the facts and the law, including to serve solely political purposes. To all of you, we communicate this: We salute and admire the courage many of you have already exhibited, and that will guide all of you as you continue to serve the interests of justice. You have responded to ethical challenges of a type no public servant should ever be forced to confront with principle and conviction, in the finest traditions of the Department of Justice.

The bold is in the original.

Does all of that seem persuasive to you? If so, try for starters reading the Copland/Mangual and Dershowitz pieces. Both make the obvious point that achieving policy priorities of the Justice Department in return for deferring or foregoing prosecution is not just common practice, but nearly universal. Dershowitz’s piece focuses on trading leniency for testimony against others and/or wearing a wire to snare higher-ups:

[D]ropping prosecutions or reducing charges on the basis of quid pro quos is common in all prosecutorial offices. . . . I have represented numerous criminal defendants who were offered quid pro quos by the Southern District and other prosecutors. The most common offer is, “We will drop the charges against you, if you testify or wear a wire against the higher-up in your company or organization.“ Another common quid pro quo is: ”If you are willing to plead guilty, we will reduce the charges.” Indeed, it is fair to say that quid pro quos in the form of plea bargain offers are essential to the operation of that office, since the vast majority of prosecutions are resolved by quid pro quo plea deals. Nor are there constitutional differences between the kind of quid pro quo plea allegedly offered Adams and the more traditional quid pro quo plea bargains offered to ordinary criminal defendants.

Copland and Mangual go into a recent ubiquitous federal prosecutorial practice known as the “deferred prosecution” agreement. These are sorts of plea deals, usually involving corporations, where prosecutors threaten some entity with a charge that may be trivial to the overall business of the entity, but could be life-threatening (think Arthur Andersen). There then emerges a deal where the prosecutors agree to “defer” the prosecution (essentially the same thing that has occurred for Adams) in return for the agreement of the corporate entity to perform some actions that the prosecutors want.

How common are these deferred prosecution agreements? Copland and Mangual:

Since the turn of the century, the Justice Department has entered into 667 deferred- and nonprosecution agreements. Since 2010, one-fourth of Fortune 100 companies—the largest American businesses by revenue—have been operating under the thumb of Justice Department agreements not to prosecute.

Our thousand-plus ex-federal prosecutors claim to be outraged about a deferral of prosecution of Adams in return for an agreement for “solely political purposes.” Are we to believe that these hundreds of deferred prosecution agreements somehow avoided “political purposes”? In fact, of course, it was the opposite:

[F]ederal prosecutors have used the threat of criminal indictment as leverage to extract money for favored groups and constituencies, outside the congressional appropriations process. After the financial crisis, Obama administration officials forced many banks to underwrite new “affordable housing” developments, to give grants to “community organizers,” to direct money to legal aid groups and to fund various “housing activist” outfits.

Thank you to Copland and Mangual for at least bringing some attention to this issue; but their description just quoted does not nearly indicate the enormity of the corruption that has been endemic in these agreements. For starters, in the wake of the financial crisis of 2008-09, the Obama administration used threatened prosecutions of banks and other financial institutions to have the Justice Department extort tens of billions of dollars to fund their friends on the Left. Much was written about this subject, including here at Manhattan Contrarian. For today, I’ll focus on a piece from Paul Larkin at the Heritage Foundation from October 2014. Excerpts:

The practice of identifying third-party recipients of monies that a corporation pays out in an N/DPA [Non-/Deferred Prosecution Agreement] is tantamount to dispensing taxpayer funds to whatever particular recipient the Justice Department selects. That practice raises important public policy issues that neither Congress nor the federal courts have yet addressed. . . . In 2014, JPMorgan Chase, Citigroup, Goldman Sachs, Bank of America, and other banks “have coughed up close to $50 billion for supposedly misleading investors in mortgage-backed bonds.” . . . Then there is BP’s $13 billion settlement for the Deepwater Horizon oil spill, Toyota’s $1.2 billion settlement over alleged faults in its automobiles, among many others. . . . Radical Democrat activist groups stand to collect millions from Attorney General Eric Holder’s record $17 billion deal to settle alleged mortgage abuse charges against Bank of America. Buried in the fine print of the deal, which includes $7 billion in soft-dollar consumer relief, are a raft of political payoffs to Obama constituency groups. In effect, the government has ordered the nation’s largest bank to create a massive slush fund for Democrat special interests.

The Heritage piece contains a list of some of the groups that got payouts from these agreements:

• La Raza, which pressures banks to expand their credit box to qualify more low-income Latino immigrants for home loans;

• National Community Reinvestment Coalition, Washington’s most aggressive lobbyist for the disastrous Community Reinvestment Act;

• Neighborhood Assistance Corporation of America, whose director calls himself a “bank terrorist;”

• Operation Hope, a South Central Los Angeles group that’s pressuring banks to make “dignity mortgages” for deadbeats.

Non-political? Completely absurd. And this list comes from just a handful of these N/DPAs. There have been 667 of them since 2000.

And now we have these thousand-plus ex-federal prosecutors suddenly in high dudgeon that some of their number have been asked to sign off on a dismissal without prejudice (essentially, the same as a deferred prosecution agreement) for Eric Adams in return for some level of cooperation in immigration enforcement. This is not remotely at the same level of either politics or corruption as the day-to-day activities of the Justice Department in crafting deferred prosecutions during Democratic administrations to benefit friendly leftist institutions.

OK, there are more than a thousand of these signatories. Can anyone out there find a single example of even one of them objecting to the Justice Department in a Democratic Administration extorting one of these completely political and completely corrupt agreements to fund leftist institutions? It’s my challenge to the readers: see if you can find it.

And while I’m at this, another one of my ex-colleagues points out that the now-famous Sassoon resignation letter is unusual not only in its length and detail, and accusations of improper conduct against her superiors, but also in appearing promptly in the press, and in disclosing confidential information that could be damaging to the further pursuit of the Adams case (should the government decide at some point to go there). Since when is it OK for a prosecutor to write a letter containing confidential information about a case and then promptly leak the letter to the press? Indeed, the letter appears to have been written for the purposes of leaking to the press.

Overall, the “courageous” federal prosecutors seem to have completely lost track of both their constitutional and ethical obligations. I guess it’s the “culture” of the Justice Department.

UPDATE, February 21: When I wrote this post yesterday, I was planning to link to some of my own earlier pieces, particularly covering the Justice Department politicized corruption of using N/DPAs to direct tens of billions of dollars from corporate settlements to left-wing advocacy groups. It is getting harder to find my own old pieces because, for some unexplained reason, they do not turn up easily in Google (or other search engine) searches.

However, today I have had some time to go through my archives, and here are some links: “Unauthorized, Unregulated, Foolproof, Lawless Government Coercion,” April 8, 2016 (“[T]here are hundreds of cases of the government engaging in unauthorized, lawless coercion and then maneuvering to get itself in a position where there can and will be no judicial review.”); “The Latest In The Endless Series Of Bank Shakedowns,” February 19, 2016 (“Let's check on who gets the money.  Supposedly the reason for the settlement is that the buyers of the mortgage-backed securities were defrauded.  So they're getting the money, right?  Wrong! . . . Yes, they are very clearly going to pass out some $400 million to their political supporters and cronies, as yet unnamed.  We have officially become a kleptocracy.”); “More On The Latest Bank of America Shakedown,” August 24, 2014 (“Then there's $7 billion for what they call "consumer relief.’ . . . [I]s there any chance that this $7 billion will not end up being another slush fund going most or all to Democratic party activists of one form or another?”).

More generally, my tag “Phony Prosecutions” now has some 90 entries. Go through some of them to get a good overview of the sickening corruption of our so-called “Justice” Department. I don’t understand how any self-respecting lawyer goes to work there, at least up until now.