Normally, when the government asks a judge to dismiss criminal charges against a defendant, the judge will happily do so. This does not occur frequently, but occasionally, the government will reevaluate the strength of its own case and conclude it cannot prove the case beyond a reasonable doubt and to a moral certainty.
What happens when the government believes it can meet that standard, but for reasons having nothing to do with the strength of its case, it seeks a dismissal? Can the Department of Justice legally, and can its lawyers ethically, hold the prosecution of the Mayor of New York City in abeyance — almost as a sword of Damocles — so as to coerce his cooperation with federal immigration officials?
Stated differently, can the DoJ, which sought and obtained an indictment of Mayor Eric Adams for bribery, use its own bribery in order to influence the mayor’s judgment on policy decisions?
Here is the backstory.
In September 2024, Adams was indicted by a federal grand jury in Manhattan for bribery and other charges. He pleaded not guilty and has forcefully denied the allegations against him. The case commenced in the first Trump administration when Adams was Brooklyn Borough President.
When the U.S. Attorney for the Southern District of New York who obtained the indictment of the mayor in Manhattan resigned after the election of Donald Trump as President, Trump appointed a stellar line prosecutor, Danielle Sassoon, as Acting U.S. Attorney, pending Senate confirmation of Trump’s nominee to become U.S. Attorney. As an aside, the Southern District of New York is the oldest, most prestigious and heretofore most independent of the regional federal prosecutorial offices.
Upon the promotion of Sassoon, Adams’ lawyers approached her with a bargain; not a plea bargain, but a bargain: If Adams changes his position on the use of city personnel and assets to assist ICE in its immigration enforcement, would the government drop the charges against him? When Sassoon and her team rejected this offer out of hand, Adams’ lawyers went to her superiors in the DoJ who found the offer appealing and generally agreed to its consummation.
The deal, never reduced to writing but constructable from the letters and emails written by those formerly involved in the prosecution, called for the dismissal of the indictment against the mayor without prejudice. It is the “without prejudice” that is the ethical and legal stumbling block here, as that type of dismissal permits the feds to take the case off the shelf at any time in the future and actively regenerate its prosecution.
The stated reason for the dismissal without prejudice is not a recognition of weaknesses in the government’s case, but rather the government’s need for the mayor’s full contemporaneous cooperation in its enforcement of federal immigration laws, a cooperation that might be lacking were he to be put on trial this spring.
That’s hogwash. It is Orwellian newspeak for a federal scheme to control the mayor.
Is this scheme itself a bribe?
It is bitterly ironic that the bribery case against the mayor might end with a bribe. A bribe is the delivery of something of value to a public official in return for the exercise of the levers of government power by that official to comply with the wishes of whomever set the delivery in motion.
I have often argued — unsuccessfully — that plea bargains that require testimony by the defendant in the plea against another defendant constitute bribery.
Why can prosecutors deliver something of value to a witness — a lesser punishment than what the law prescribes and a judge likely would administer — in order to tailor the witness’s testimony; and defense counsel cannot? Why doesn’t the prosecutorial delivery of something of value to a witness constitute witness tampering?
If you accept my argument about government law-breaking, you can understand my animus about what the DoJ has done here. According to Sassoon, it has offered Mayor Adams something of value — the dismissal of federal bribery charges, albeit without prejudice — in return for the exercise of the levers of government power in cooperation with ICE.
Is the mayor already required by law to cooperate with ICE? He is not. He cannot lawfully impede the work of ICE any more than anyone else can, but he is not required to assist it. He and he alone decides how the levers of government power in New York City shall be exercised vis-a-vis the feds. The feds cannot commandeer city officials to aid in their work.
What should the court do with this motion to dismiss without prejudice? The first thing the court should do is to order all the lawyers who touched this case — including the Attorney General and her deputy — to testify under oath. The court needs to know if the DoJ is attempting to use it as a political tool. If it blithely grants the motion, that will be the inevitable conclusion.
As we have all seen, the use of law enforcement for political purposes often produces political results. Jurors are not dumb. If they sense a prosecution or judicial order is lacking in moral propriety, fidelity to the law, and consistency with the Constitution, then their judgements about right and wrong will be little more than a reflection of their political preferences.
On the other hand, the court cannot force the feds to prosecute the mayor. It can expose their perfidy, and the heroism of Sassoon and her six colleagues who resigned rather than be a part of this tawdry scheme. Then the court can dismiss the case with prejudice, thereby upending the scheme and removing the sword from over the mayor’s head.
I don’t know if Mayor Adams is innocent or guilty. But it is better for him to walk free than to permit the system to bribe him with impunity.
To learn more about Judge Andrew Napolitano, visit https://JudgeNap.com.
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