Dale Ho Asks for Signed Consent from Eric Adams; Alex Spiro and Bill Burck Don’t Provide It
In his first order following Emil Bove’s submission of his request to dismiss the Eric Adams prosecution, Judge Dale Ho notes the same thing I was among the only people to mention: Bove claimed that Adams had consented to dismissal without prejudice in writing, but he did not include that consent with the filing.
ORDER as to Eric Adams: The motion to dismiss states that “Defendant Eric Adams has consented in writing to this motion,” see ECF No. 122 at 1, but no such document has been provided to the Court. Defendant is therefore ORDERED to file his “consent[] in writing” on the docket by 5:00 pm ET today. The parties are further ORDERED to appear before the Court for a conference on February 19, 2025, at 2:00 pm in Courtroom 318 of the Thurgood Marshall Courthouse, 40 Foley Square, New York, NY. The parties shall be prepared to address, inter alia, the reasons for the Government’s motion, the scope and effect of Mayor Adams’s “consent[] in writing,” ECF No. 122 at 1, and the procedure for resolution of the motion. SO ORDERED. (Status Conference set for 2/19/2025 at 02:00 PM in Courtroom 318, 40 Centre Street, New York, NY 10007 before Judge Dale E. Ho) (Signed by Judge Dale E. Ho on 2/18/2025) (See ORDER as set forth) (lnl) (Entered: 02/18/2025) [my emphasis]
Here’s what I wrote over the weekend:
[T]here are obvious documents we’d all like to see that, if these other documents are formally aired in this case, I expect Judge Ho to request, starting with the notes someone from SDNY took at a January 31 hearing. Bove also described written submissions from prosecutors and Adams’ team in his response and a February 3 memo from SDNY that, he describes, denied a quid pro quo. He also claims Sassoon, “acknowledged previously in writing” that there was no quid pro quo, which may be that February 3 memo. And there are all the letters that are public but not formally before him.
Again, Judge Ho may demand all that if and when he begins to look closely.
But there’s another document that is missing, conspicuously so.
Bove’s Nolle Prossequi motion describes that Adams has consented to dismissal, but he does not include it.
Through counsel, Defendant Eric Adams has consented in writing to this motion and agreed that he is not a “prevailing party” for purposes of the Hyde Amendment. See P.L. 105- 119, § 617, 111 Stat. 2440, 2519; 18 U.S.C. § 3006A note.
This is, quite frankly, either insane or rank incompetence. There is no way any judge, former ACLU voting rights lead or not, would accept a dismissal without prejudice without seeing that documented.
Sometime after Judge Ho issued that order, Alex Spiro (the attorney Eric Adams shares with Elon Musk) and Bill Burck (who serves as Trump Organization’s outside ethics advisor), submitted a filing claiming that they know nothing about a quid pro quo. The last thing they did, they claim, was to submit the January 3 letter Emil Bove asked for in writing.
Acting Deputy Attorney General Bove invited us to a meeting at which he asked us to address how the case might be affecting Mayor Adams’s ability to do his job and whether there was evidence of politicization. At that meeting, which occurred on January 31, 2025, we explained that the indictment and upcoming trial were impeding Mayor Adams in myriad ways, including as to enforcement of federal immigration laws, and that Damian Williams’s post-SDNY conduct raised serious concerns about his motives in authorizing the prosecution. Ms. Sassoon and her colleagues were present and actively participated in the meeting. We had a polite and professional debate under questioning from Mr. Bove. At the conclusion of the meeting, Mr. Bove asked us and the SDNY lawyers to memorialize our respective positions in writing, which we did in a letter we submitted to the Department on February 3, 2025, a copy of which is attached as Exhibit A.
We heard nothing further until February 10, 2025, when we learned from the press that the Department had decided to dismiss the case. We had no heads up or prior notice. We never coordinated with the Department or anyone else. [my emphasis]
The thing is, the February 3 letter — the last that Spiro and Burck heard, they say — mentions nothing about dismissal without prejudice. This is the only mention of dismissal.
An honest balancing of these concerns against the unsupported prosecution theories in this case militates strongly in favor of dismissal.
So now they’re on the hook for submitting some other document, signed before Friday, that consents to having this indictment hang over Adams’ head while he does all the things he claims he wants to do for NYC.
Update: Ho’s order itself says the motion to dismiss is not itself conclusive.
The government’s determination to abandon a prosecution is “entitled to great weight” and to a “presumption [of] good faith[,] . . . but it is not conclusive upon the Court; otherwise there would be no purpose to Rule 48(a), which requires leave of Court to enter the dismissal.” United States v. Greater Blouse, Skirt & Neckwear Contractors Ass’n, 228 F. Supp. 483, 486 (S.D.N.Y. 1964) (Weinfeld, J.). Thus, “[w]hile there can be no doubt that the government has broad discretion in deciding which cases to prosecute and how to prosecute those cases, once the government has involved the judiciary by obtaining an indictment or a conviction, its discretion is tempered by the courts’ independent obligations.” Blaszczak, 56 F.4th at 259 (Sullivan, J., dissenting).
Rule 48(a)’s requirement of judicial leave . . . contemplates exposure of the reasons for dismissal.” United States v. Ammidown, 497 F.2d 615, 620 (D.C. Cir. 1973). “Since the court must exercise sound judicial discretion in considering a request for dismissal, it must have sufficient factual information supporting the recommendation.” 3B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 802 (4th ed. 2013). In granting a motion under Rule 48(a), the Court “should be satisfied that the reasons advanced for the proposed dismissal are substantial.” Ammidown, 497 F.2d at 620.
Update: Spiro and Burck have now sent the consent letter, dated February 14, with a cover letter, dated today.
The document creation time for the latter,
Precedes the letter created on Friday.
If they had sent it by email on Friday, as the lawyers claim, they would have a PDF copy from then.
Update: A few more details about the consent issue. Bove’s February 10 memo instructed Sassoon to get that signed consent — and that it be signed by the defendant, not his lawyer.
You are directed, as authorized by the Attorney General, to dismiss the pending charges in United States v. Adams, No. 24 Cr. 556 (SDNY) as soon as is practicable, subject to the following conditions: (1) the defendant must agree in writing to dismissal without prejudice; (2) the defendant must agree in writing that he is not a prevailing party under the Hyde Amendment, Pub. L. 105-119 (Nov. 26, 1997); and (3) the matter shall be reviewed by the confirmed U.S. Attorney in the Southern District of New York, following the November 2025 mayoral election, based on consideration of all relevant factors (including those set forth below).
That’s a no-brainer. The existing consent is simply not sufficient: SDNY would need proof that the lawyers advised Adams on the significance of the without prejudice dismissal and that he, not they, consented.
But then Sassoon’s letter makes it clear that Bove negotiated this at some unidentified time before she sent the letter on February 13.
Mr. Bove specifies that Adams must consent in writing to dismissal without prejudice. To be sure, in the typical case, the defendant’s consent makes it significantly more likely for courts to grant motions to dismiss under Rule 48(a). See United States v. Welborn, 849 F.2d 980, 983 (5th Cir. 1988) (“If the motion is uncontested, the court should ordinarily presume that the prosecutor is acting in good faith and dismiss the indictment without prejudice.”). But Adams’s consent— which was negotiated without my office’s awareness or participation—would not guarantee a successful motion, given the basic flaws in the stated rationales for dismissal. See Nederlandsche Combinatie, 428 F. Supp. at 116-17 (declining to “rubber stamp” dismissal because although defendant did not appear to object, “the court is vested with the responsibility of protecting the interests of the public on whose behalf the criminal action is brought”). Seeking leave of court to dismiss a properly returned indictment based on Mr. Bove’s stated rationales is also likely to backfire by inviting skepticism and scrutiny from the court that will ultimately hinder the Department of Justice’s interests. In particular, the court is unlikely to acquiesce in using the criminal process to control the behavior of a political figure.
It’s unclear when that could have happened, if Spiro and Bove didn’t speak between February 3 and February 10.
“Uh Oh SpaghettiOs”
https://www.youtube.com/watch?v=uACvFAm6JSM
So theoretically Ho could just arrive on Friday, dismiss the case with prejudice and issue a very sternly worded anadmonishment to DoJ. That would arguably be the quickest way to deal with this crap. What other options does he have? Is contempt on the table if they again try to push useless docs and comically false stories?
I am led to believe he can hold a hearing, and could theoretically appoint an outside counsel to continue the prosecution (which won’t happen). Dismissal with prejudice seems the most likely outcome, possibly with a hearing to establish the facts, given the series of resignations and suggestions of a quid pro quo.
My reading of this section is that Judge Ho is considering the need for a hearing to ensure he has a clear record of the facts: “Since the court must exercise sound judicial discretion in considering a request for dismissal, it must have sufficient factual information supporting the recommendation.” 3B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 802 (4th ed. 2013). In granting a motion under Rule 48(a), the Court “should be satisfied that the reasons advanced for the proposed dismissal are substantial.” Ammidown, 497 F.2d at 620.
Thanks. A nice embarrassing hearing on the record before Ho tells Adams to thank his lucky stars sounds like a perfectly reasonable resolution to this whole mess
Thank you. Please note typo in the last line of the paragraph below (the letter was February 3):
Sometime after Judge Ho issued that order, Alex Spiro (the attorney Eric Adams shares with Elon Musk) and Bill Burck (who serves as Trump Organization’s outside ethics advisor), submitted a filing claiming that they know nothing about a quid pro quo. The last thing they did, they claim, was to submit the January 3 letter Emil Bove asked for in writing
Now that’s a job I didn’t know existed, kind of like a vegan commune’s veal purchaser.
But the possibilities for what that position entails are . . . interesting:
1) He’s the lawyer who advises the Trump Organization on the ethics of outsiders, then helping TO exploit those ethical positions for their own benefit;
2) It’s a no-show, make-work job, allowing Burck to put a fancy title on his resume without having to do any actual work; or
3) a mix of the two, with advice about outsiders but no work inside TO.
Or a third piece of the pie: has position in place so that Fox et al can reference in stories or maybe even interview for propaganda pieces targeted to the frothy right.
or
4) It’s a job to advise Trump on making sure ethics stay outside the Trump Organization.
More like a free-love community’s abstinence advisor.
It would be a real shame if no document existed that was signed before last Friday, showing that Adams consented. The fact that Bove personally signed the motion before Ho could make his continuing tenure at DOJ rather difficult.
Remind me again: what’s the penalty for making false statements and misrepresentations to a federal judge?
A pardon and paid appearances on Fox News for the rest of the term
Thus the absolute need for a hearing to determine what evidence there is. If there is a signed consent then Adams would also have a copy and Judge Ho can subpoena that as well. Or, at least one of the deputy mayors may have a copy to submit with an amicus brief.
Or, this could be garden variety GOP gaslighting (remember the enormous ACA replacement plan binder that turned out to be blank pages?) but as noted this was part of a filing into a federal court which undoubtedly has the phrase of ‘submitted under penalty of perjury’. If there is no document, then Bove perjured himself (it’s either there or not there) and in addition to dismissing with prejudice Judge Ho should also issue a referral for disbarment to all Bars Bove is licensed in.
If there is a letter, it should become part of the public record but Judge Ho should issue a referral for disbarment to all Bars that licensed Spiro and Burck for intentionally misleading the federal court.
What should Hochul do? It depends on whether our letter exists (and I suspect it does given the deputy mayors leaving en masse because of Adams’ failures). If it does exist, she must fire Adams because the quid pro quo is established in the court record including the terms. If not, she can still wait. I don’t think she should, but this is a very cautious politically sensitive governor who will not like the blowback for pulling the trigger too soon (in her mind).
Hochul has a practical problem now. I noted in an earlier post that there were people in the mayor’s office that could handle things if Adams was removed. Now there are fewer people that can do so, so Hochul has to choose between (a) a Mayor’s Office with no Mayor and fewer people to run the place if she boots him for corruption, or (b) a corrupt and compromised Mayor for the next 11 months. She’s not in a very good position, IMHO.
If she removes him, can she not bring in one or all the assistant mayors that quit?
lighten up guys, next thing you know you will be wanting DOJ lawyers to be licensed in the relevant jurisidiction where they are filing motions:
https://www.reuters.com/world/us/top-trump-prosecutor-dc-faces-bar-complaint-dismissing-january-6-charges-against-2025-02-06/
T has nominted this guy to be the US Attorney for DC.
I understand that defendant’s position is that no quid pro quo was discussed. But it’s useful to keep in mind that practitioners-including prosecutors-before the SDNY are bound by local rule to adhere to the New York State Rules of Professional Conduct.
Those rules provide, in part, that a lawyer shall not “present, participate in presenting, or threaten to present criminal charges solely to obtain an advantage in a civil matter.” N.Y. State Rule of Prof. Conduct 3.4(e). A comment to the Rule helpfully explains that “[t]he use of threats in negotiation may constitute the crime of extortion.”
Is the civil matter the dismissal? Or something else?
I’m a lawyer, though not in NY and not in criminal law. But I don’t think that rule applies in this context. In my practice, what it means is that you cannot have a civil suit against a person, and use the threat of reporting that the person has committed a crime in order to extract a greater settlement out of a person.
Here’s how it sometimes comes up in my employment practice. An employee is fired, and claims it was for a discriminatory reason. I tell the employee, no, you were fired because we discovered that you submitted expense reimbursement requests for expenses you didn’t incur.
The line I can’t cross is to say “and you better drop your claims against the company, or we’ll take this to the police.”
The Ethics rules are rules of reason. Here we (may) have a situation of the USG telling a defendant that we will continue to prosecute you unless you agree to use the offices of Mayor to cooperate with the USG’s federal deportation efforts. Moreover, we will only agree to dismiss without prejudice so we can ensure your cooperation with the deal at risk of future prosecution. That would seem to fall squarely within the language. Frankly, consistent with the Rule comments, this arguably constitutes extortion.
Granted, this may be an unusual application of the rule, but we live in unusual times.
Let’s look at the New York Rules definition of matter. “’Matter’ includes any litigation, judicial or administrative proceeding, case, claim, application, request for a ruling or other determination, contract, controversy, investigation, charge, accusation, arrest, negotiation, arbitration, mediation or any other representation involving a specific party or parties.” In the above example, we have a civil contract, controversy, and arguably an investigation as well.
Okay, that makes sense. So what is the employee barred from doing? What if there were no expense reports, but there’s clear (but not conclusive) evidence, of racial discrimination, and the employee’s leverage is (a) the threat of discovery, which may produce evidence of all sorts of other problems with the company, and (b) the threat of going public. What can’t they say or do?
There are 2 letters from Spiro to Bove
Feb 3
https://storage.courtlistener.com/recap/gov.uscourts.nysd.628916/gov.uscourts.nysd.628916.130.1.pdf
Dkt #130-1 exh A 5 pp
Feb 14
https://storage.courtlistener.com/recap/gov.uscourts.nysd.628916/gov.uscourts.nysd.628916.131.1.pdf
Dkt #131-1 exh A 1 page
Which purports to be the consent in writing to dismissal without prejudice, and acceptance Adams not the prevailing party
The letter to Ho # 131 is very brief
“We write in response to the Court’s February 18, 2025, order that Mr. Adams file the written consent referred to in the government’s motion to dismiss, Dkt. 122 at 1. Dkt. 139. The written consent was transmitted via e-mail from Mr. Adams’s counsel to Mr. Bove on February 14, 2025, and is attached as Exhibit A to this letter.
Respectfully submitted,
/s/ Alex Spiro
Alex Spiro
William A. Burck.”
There is no explanation of why they omitted this letter attachment from their earlier brief, nor have they provided the email by which this was transmitted to Bove.
This is all very strange !!!
Judge can ask for evidence that this attachment was actually sent on 2/14/25 and what time.
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I out the metadata from the docs above. Today’s letter was created after Friday’s.
There are explanations for that, but if they did send by email on Friday, they would have PDFed it then.
Is Ho allowed on his own to order Sassoon et al to testify given how ridiculous all of this continues to look?
Is the civil matter the dismissal? Or something else?
Oops. Meant this for Amicus12, above.
I think an agreement to the Mayor’s office cooperation with the Administration’s deportation effort falls within the meaning of “civil matter.”
Everything here is so screwy and suspect. What defense attorney has his client agree to a dismissal without prejudice to being prosecuted again?
Where is the email transmitting the letter supposedly written on Feb. 14?
Everything seems wrong facially and then we have the scathing letters from the prosecutors who refused to be involved in this enterprise.
Everything involving Trump is always, on purpose, so screwy and suspect.
“What defense attorney has his client agree to a dismissal without prejudice to being prosecuted again?”
1. The defense atty. whose client knows that his only means of evading soon-to-be-expanded charges with significant evidentiary basis (if Sassoon is to be believed) is taking this deal with the Devil; and whose client (remonstrations to the contrary notwithstanding), caring nothing about the people he was elected to serve, eagerly agrees to the sociopaths’ bargain.
2. The defense attorney who was in on the deal from the ground floor.
To quote from the 3 Feb letter:
“The Mayor derives his power from the New York City Charter and the inherent
nature of his political position. His powers allow him to take actions such as preventing the Office
of the Corporation Counsel from litigating challenges to immigration enforcement, preventing
appointed city employees from taking public stances against enforcement efforts, re-opening the
ICE office on Rikers Island, and directing the NYPD to supply manpower to assist federal
immigration agents. ”
How is this not an acknowledgement of the reasoning for dismissing charges? Adams gets off the hook because……and not due to the charges against him being weak sauce.
Judge Ho has ordered the prosecutors (and others) to show up in court Wednesday.
I suspect our answers will come, either with data (i.e. Adams’ acceptance letter) or its continuing absence which infers there was never any real evidence.
Did Adams open Rikers for ICE investigation? That would be a flagrant violation of the NYC sanctuary ordinance and reason enough to remove him.
Popok had a post (consider the source) about how Judge Ho can appoint a special prosecutor if he feels that there is a flagrant attempt to skirt the law with the quid pro quo (reporting to Judge Ho) to drop the Adams indictment. He cited precedent where Andrew Young had this happen to him in a federal court case, but I can’t find a reference to Young’s case so is there something to this? PACER is wonky today.
Is a special prosecutor not what happened with Steve Donziger?