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Last week, we came one step closer to a resolution of the federal corruption case against New York Mayor Eric Adams. On Friday, Paul Clement, the lawyer Judge Dale Ho appointed to offer arguments against the Trump administration's motion to dismiss charges against Adams without prejudice, made his recommendation: dismissal, but with prejudice. As a former prosecutor at the U.S. attorney's office for the Southern District of New York, the division charged with Adams' case, all I could think was: What?
Ho appointed Clement, the conservative former U.S. solicitor general under President George W. Bush, to hear arguments against the Department of Justice's new position in this case. The acting U.S. attorney in charge of the case, Danielle Sassoon, had previously voiced arguments against that position, but that was in a letter to the Trump administration and resulted in her being forced to resign for not toeing the DOJ line. Other prosecutors on the case resigned, and the administration threatened to keep firing prosecutors who didn't get behind the motion. This is why the previous hearing, and briefing, on the matter before Ho was completely one-sided. As the judge made clear in his order appointing Clement amicus curiae, he wanted "the benefit of adversarial briefing" and "adversarial testing of the Government's positi on."
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The problem is, Clement's recommendation is hardly adversarial at all. Instead of opposing the Trump administration's motion to dismiss without prejudice, Clement simply makes a counteroffer: dismissal with prejudice. It's a counteroffer that Adams should love, the equivalent of a permanent, irrevocable, get-out-of-jail-free card. And it's a counteroffer that in a way gives the finger to Trump. After all, if Ho dismisses the case with prejudice, Trump loses his power to hold the threat of resuming the prosecution so that Adams supports his mass deportation strategy. In other words, under Clement's recommendation, Adams would get the quid but Trump would lose the quo. Maybe looking at it that way it doesn't sound too bad. Except Clement's recommendation also gives the finger to the rest of us.
In recommending dismissal with prejudice, it's not just that Clement ignores the strength of the evidence against Adams, who's facing charges that include making false statements to defraud the city of $10 million in matching funds during his previous election campaign, pressuring the city's fire department, performing a backroom deal to open a Manhattan skyscraper notwithstanding safety concerns, and receiving lavish first-class flights and hotel stays around the world as part of a quid pro quo with Turkey. It's that he ignores Supreme Court precedent that permits Ho to consider the public interest and decide entirely against a motion to dismiss. After all, it is not the government that returned the indictment against Adams, but a grand jury. And yet, in Clement's brief, the public interest is given short shrift, or rath er no shrift at all. Indeed, it is the people of New York City who are the victims of Adams' fraud, especially with respect to the matching funds. Beyond New York, the public at large has an interest in securing that justice is done, that no one is above the law, and that we are a country where political quid pro quos are punished as a subversion of the rule of law.
But Clement ignores the public interest. He also ignores the specifics of this case. There is a reason his brief sidesteps the strength of the evidence against Adams and the transparently self-serving reasons the Trump administration has offered in favor of dismissal. He even ignores the back-and-forth between acting Sassoon and acting Deputy Attorney General Emil Bove, the spate of resignations, and the similarities to the Michael Flynn case during the first Trump term.
Indeed, reading Clement's brief, one might forget that Trump is president and that the motion to dismiss is based on a "Scratch my back and I'll scratch yours" deal. Instead, the brief conveniently focuses on the separation-of-powers issues and judicial precedent in favor of construing the court's role narrowly. Clement stresses that "courts have agreed that the primary purpose of [Rule 48 dismissal] is protection of a defendant's rights." True, protecting a defendant from harassment has been the primary purpose of dismissal, but that's because this situation—a dismissal for self-serving political reasons—has seldom, if ever, presented itself. Indeed, this scenario has been largely unimaginable and unprecedented. Instead of acknowledging that this is Trump we're talking about, Clement ultimately argues that Ho should dismiss the case with prejudice and that if he does not, prosecutors will simply respond by "dragging their feet" or throwing in the towel and refusing to go forward, requiring the court to dismiss the case with prejudice later. Then let it be so.
So what should Ho do? For starters, since Rule 48 permits him to consider the public interest, he should think about the public's view in all of this, especially the view of the victims. The city of New York and its taxpayers were allegedly defrauded out of $10 million when Adams made false statements to get matching funds. Presumably, the city's Law Department, which could speak for the city, might also have something to say here. At least someone—evidently not Clement—then might start speaking for the public and could truly argue against this dismissal. That would be a start.
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