NEW YORK — An outside lawyer appointed by the judge overseeing the criminal case against New York City Mayor Eric Adams advised the judge on Friday to dismiss the case permanently, rather than approve the Justice Department’s request to abandon it for now while preserving the right to reinstate it in the future.
Paul Clement, a prominent conservative Supreme Court advocate, wrote in a 33-page brief that “the court has a limited, but critical, role” to play in evaluating the Justice Department’s effort to stop prosecuting the Democratic mayor on corruption charges.
Why Permanent Dismissal?
Judges have no authority to force the department to continue prosecuting a case, Clement wrote. But judges do have a role in approving how a case is dismissed once the department has decided to abandon it. In the Adams case, the “proper remedy” is a permanent dismissal, Clement told U.S. District Judge Dale Ho.
The Risk of Reviving Charges
Allowing the department to retain the right to revive the charges could create an appearance of improper leverage over the mayor, Clement suggested. Or, he acknowledged, it could create an actual shakedown, in which the administration could use the threat of the charges to pressure the mayor to assist with President Donald Trump’s agenda.
Legal Dilemma
Ho appointed Clement last month to present “adversarial” arguments on the department’s bid to abandon the charges against Adams. Ho does not have to follow Clement’s recommendation.
The extraordinary effort by top Trump administration officials to stop prosecuting Adams sparked a crisis in the Justice Department. Emil Bove, then the department’s acting No. 2 official, ordered the Manhattan U.S. attorney’s office, which brought the case, to drop it and to do so “without prejudice,” a legal term meaning the charges could be refiled. Bove’s order triggered a revolt inside the department, prompting the resignation of Danielle Sassoon, who was the interim Manhattan U.S. attorney, and several other top prosecutors in New York and Washington.
In her resignation letter, Sassoon alleged a quid pro quo between the Justice Department and Adams in which the charges would be dropped in exchange for the mayor’s help with Trump’s agenda, particularly regarding immigration enforcement.
Concerns About Revival
In his brief, Clement took aim at Bove’s argument that prosecutors should retain the ability to bring the charges again in the future. That scenario, Clement wrote, would create “a palpable sense that the prosecution outlined in the indictment and approved by a grand jury could be renewed, a prospect that hangs like the proverbial Sword of Damocles over the accused.”
“Such an ongoing prospect of reindictment is particularly problematic when it comes to the sensitive task of prosecuting public officials,” Clement wrote. “There is an inherent risk that once an indictment has been procured, the prospect of reindictment could create the appearance, if not the reality, that the actions of a public official are being driven by concerns about staying in the good graces of the federal executive, rather than the best interests of his constituents.”
Final Decision
If the Justice Department is committed to dismissing the case now, Clement wrote, the department should have to do so “with prejudice” — meaning the charges could never be revived. That scenario would eliminate “the distinct appearance problems” presented by a sitting elected official working under the “ever-looming prospect” of reindictment.
While Adams initially consented to prosecutors’ effort to drop the case without prejudice, since then he has also separately asked the judge to drop the case permanently. Prosecutors haven’t responded to that request.
