Chad Mizelle’s Appearance of Impropriety
Something funny happened before the hearing in the Emil Bove’s motion to dismiss Eric Adams’ case today (after a long exchange, Judge Dale Ho did not rule on the motion itself).
Pam Bondi’s Chief of Staff Chad Mizelle posted a very long thread on Xitter falsely pretending that this case was only about the single bribery charge against Adams. He focused closely on the way John Roberts’ court has rolled back bribery statutes.
For too long the DOJ has lost its way.
Prosecutorial misconduct and political agendas will no longer be tolerated.
The case against Mayor Adams was just one in a long history of past DOJ actions that represent grave errors of judgement.
This DOJ is going back to basics.
Prosecuting the mayor of America’s largest city raises unique concerns.
I want to focus on one aspect: The legal theories underpinning SDNY’s case and the particularly expansive reading of public corruption law adopted by the prosecutors in this action.
To win a bribery conviction against a public official, DOJ must show some official act in exchange for benefits — a quid pro quo. What is the official act alleged in this indictment?
Well, the main event took place before Adams was even Mayor.
In September 2021, when Adams was a candidate for office, [1] a person associated with the Turkish government allegedly asked Adams to help ensure the swift opening of a new Turkish consulate in NY in advance of a visit from Turkey’s leader.
So here is a key question: How do these facts as alleged in the indictment stack up against the case law? Let’s start with a history lesson.
EVERY TIME DOJ has pursued expansive theories of public corruption, the Department has been rebuked by the Supreme Court. Put simply, DOJ’s track record of public corruption cases at the Supreme Court is abysmal.
In 2024, DOJ lost 6-3 in Snyder v. US, where SCOTUS overturned the conviction of an Indiana mayor who was convicted of federal bribery in connection with supposedly illegal gratuities. The Court rejected DOJ’s theory that accepting gratuities constituted quid pro quo bribery.
The year before, in 2023, DOJ unanimously lost two cases in the Supreme Court—both brought by prosecutors in the U.S. Attorney’s Office for the Southern District of New York.
In Ciminelli v. United States, The Supreme Court unanimously tossed the wire fraud conviction in connection with former Governor Andrew Cuomo’s “Buffalo Billion” initiative, calling DOJ’s theory of criminal liability “invalid.”
And in Percoco v. United States, the Supreme Court unanimously rejected the government’s theory about when private citizens can be liable for honest-services fraud in a case involving Governor Cuomo’s former executive secretary.
By the way, both Ciminelli and Percoco were decided on the same day, May 11, 2023. What a stunning rebuke to the US Attorney’s Office in the Southern District of New York — Losing 18-0 in a single day.
Then there is Kelly v. United States from 2020, unanimously overturning the conviction of New Jersey officials involved in the so-called “Bridgegate” matter by, again, faulting the government for defining federal fraud too broadly.
Before then, SCOTUS unanimously repudiated the United States’ prosecution of Gov. Bob McDonnell in 2016, again faulting DOJ’s expansive theories of bribery. SCOTUS in Skilling v. United States in 2010 similarly rejected DOJ’s theory of honest-services fraud as overly broad.
And finally, when DOJ prosecuted Senator Ted Stevens for failing to report gifts, DOJ ended up having to dismiss the indictment even after obtaining a conviction, because prosecutors egregiously failed to disclose material evidence to the defense.
Clearly, this history and case law underscores the legal risks associated with prosecuting Mayor Adams. DOJ could win a bribery conviction against a public official only by showing some official act in exchange for benefits.
The alleged official act in the indictment, however, took place before Adams was mayor. And one of the main benefits that the Mayor allegedly received was campaign contributions. [2] But all successful politicians, no matter the party, receive campaign contributions.
In the Adams case, SDNY was rolling the dice. And given the DOJ’s abysmal history of losing at the Supreme Court, the odds were against the DOJ. Even the district judge said at a recent hearing that there was “some force” to Adams’s challenges to the gov’ts central legal theory.
The government must tread particularly carefully before classifying contributions a crime given the First Amendment implications of such a theory.
Additionally, the amount of resources it takes to bring a prosecution like this is incredible — thousands and thousands of man hours. Those resources could better be used arresting violent criminals to keep New York safe or prosecuting gang and cartel members.
Given the history, DOJ had to decide—among other issues—whether to keep going down a road that the Supreme Court has viewed with skepticism on numerous occasions. Dismissing the prosecution was absolutely the right call. END.
• • •
Mizelle is not wrong, at all, about the Roberts’ court’s disinterest in public corruption. They are, at least some of them, aficionados of it!
But along the way, Mizelle addressed only the bribery charge — the sole charge that Adams’ lawyers moved to dismiss.
Even there, Mizelle was playing loose with the record. The quote (from Judge Ho’s opinion rejecting the challenge) that Adams’ argument has “some force” only applies to one of two theories of bribery adopted by SDNY.
Mayor Adams takes particular issue with the Government’s first theory, arguing that— even leaving aside Snyder—being “influenced in connection with the City of New York’s regulation of the Turkish House” is simply too general or vague to constitute the requisite quo for bribery under § 666. Def. Reply Br. at 6–7; see also Def. Br. at 11. He contends that the words “business,” “transaction,” and “series of transactions” in § 666 refer to “specific and concrete governmental actions, not abstract or general objectives.” Def. Br. at 10. He further argues that to the extent the word “business” could be read broadly, it should not be—because that would render the terms “transaction” and “series of transactions” superfluous. Id. Adams seeks, in effect, to imbue the quo element of § 666 with a degree of specificity that, even if not identical to McDonnell’s “official act,” embodies a “core requirement [that] would be the same: . . . a specific and formal exercise of governmental power.” Def. Br. at 10.
Mayor Adams’s arguments on this point have some force.
Judge Ho didn’t say the same about the theory that Adams paid off Türkiye’s favors by helping them get into their new consulate.
Separately, regardless of whether the “regulation” of the Turkish House is specific enough to form the requisite quo at the indictment stage, there is no real dispute that the issuance of a TCO is a specific and formal exercise of governmental power
Furthermore, Mizelle claimed at [1] that Adams was just a candidate. While Adams was not yet Mayor (though he had won the Democratic primary) he was Borough President when he sent some texts to get the FDNY to approve the building. As Judge Ho noted in his opinion, whether Adams used his authority as Borough President to deliver a quo to Türkiye was a matter for a jury to decide.
Mayor Adams makes a separate but related argument that, even if formal authority is unnecessary, a pressure theory still requires that a defendant “us[e] his official position to exert pressure on another official.” McDonnell, 579 U.S. at 574 (emphasis added). Adams contends that the Indictment fails to allege that any pressure he exerted on the FDNY stemmed from his official position as Brooklyn Borough President. See Def. Br. at 19. Rather, he argues, “the government is effectively claiming that Adams used his potential future position as Mayor to exert pressure on officials.” Id.
But the Indictment alleges that, “as Brooklyn Borough President, [Adams] met with members of the FDNY from time to time,” Ind. ¶ 38a, and the Government argues that it will prove at trial that it was Adams’s position as Brooklyn Borough President that “[got] him in the room, as it were, with the fire commissioner” in order to exert pressure regarding the TCO. Tr. at 33; see also id. at 34 (arguing that the jury could conclude that “the defendant was using his official position as Brooklyn Borough president to let him reach out [to] the fire commissioner on city business with the mayor, that’s what got him a room”). Ultimately, whether or not Adams used his official position as Brooklyn Borough President to exert pressure on the FDNY is a factual question for a jury to resolve.
So even on the bribery count, Mizelle was playing loose with the record.
But then he dismissed the other allegations in the indictment — which, again, Adams’ lawyers didn’t challenge as a matter of law — which include wire fraud, soliciting straw donors, and accepting illegal campaign contributions from foreigners, as mere campaign donations.
Pam Bondi’s Chief of Staff treated gifts from foreign powers as if they’re totally legal.
Noted.
That far, anyway, Chad Mizelle’s little screed looked thoroughly dishonest. But I didn’t doubt his — and by extension, DOJ’s — opposition to the enforcement of bribery statutes.
But at 2:37 ET, shortly after I was reading the rant Mizelle posted at 12:42, I was alerted to this development: an information setting up a one count guilty plea by former DC official Dana McDaniel, in a scheme that is almost certainly related the charges filed against former DC Council Member Trayon White last September. The information was signed by Acting DC US Attorney Ed Martin, one of Pam Bondi’s trusted operatives.
Pam Bondi’s DOJ doesn’t have a categorical opposition to bribery charges, it turns out.
Only bribery charges against those from whom they want something in exchange.
Once upon a time, candidates for president could say one thing in one state, then travel to another state and say the exact opposite. Because media outlets were all primarily local, there was little pushback against talking out of both sides of your mouth.
These days, though, if you make one argument in one court and the opposite argument in another, SOMEONE is going to not just notice but call you on your BS.
And if that someone is wearing a black robe, it will not go well for you.
It would be nice to see Judge Ho invite Bondi, Bove, and Martin to come in for a chat.
Under oath.
In open court.
Bove was the only one who spoke today.
Didn’t really impress me. I wouldn’t want to be Dale Ho, bc I think Bove opened himself up to some shit.
FWIW, Kristi Greenberg, who was in the courtroom today, opined on MSNBC that Ho was acting intimidated, which caused him to not to ask tough questions. Is she right?
https://www.youtube.com/watch?v=jsPqJYGxT-o
I’m not sure I buy that.
I think she may be missing the significance of some of the questions.
Because not ignoring that opening and actively adulting on Dale Ho’s part is going to be at least as hard if not significantly crappier than most active adulting?
Somewhat OT, but tonight’s PBS Newshour piece about the Adams hearing today before Judge Ho
was shockingly bad. (Video not posted yet.)
No mention of `dismiss without prejudice’ and its implications.
And making Gov. Hochul sound like a judge, jury and executioner,
as opposed to dealing with a real time extortion situation.
I know PBS and NPR are facing existential threats, but JFC.
This is an extremely interesting post.
The 20 tweet thread was posted as you noted at 12:42, ie 1 hour and 18 minutes before Judge Ho took the bench to conduct his hearing on the DoJ’s nolle prosequi motion in Adams.
Clearly, this is not the some lawyer using his lunchtime to muse upon an issue— this is a high ranking DoJ official trying to shape in advance the public reception to an important/controversial hearing. Whether the intent was also to influence the judge there and then is more open to question.
But given that Ho has adjourned his hearing, an interesting question arises as to whether Ho should take notice of the fact of this unconventional set of circumstances.
Several legal commentators have expressed some exasperation at Ho’s conduct of the hearing, for being too timid in his approach eg Kristy Greenberg on MSNBC.
I am not sure her desire and expectation for blood and thunder from Ho was reasonable, and that his seeming passivity was because he was ‘scared and intimidated’(sic) https://youtu.be/jsPqJYGxT-o [from 03:24] is necessarily an accurate take.
I followed the live tweeting of Klarsfeld, and InnerCityPress. It struck me that the hearing was very much like the preliminary stage of an interrogation, where topics are introduced, in a deliberately non-challenging way, and the suspect/witness are encouraged to expound upon each topic, giving them plenty of rope, and occasionally testing how resistant they are to mild suggestions.
Bove, Spiro and Adams each said things which warranted push back, but my impression was that Ho was biding his time, knowing that he was going to adjourn, and that there would be stage 2 of the interrogation (the challenge phase) to come after he rules it is justified and required.
An hour and 10 minutes into the hearing ICP records this exchange
“Judge Ho: Adversarial testing of a position can be of benefit – but that may not be needed here. I’d like to hear you on this
Bove: You have created a clear record today, by putting Mayor Adams under oath. There is no quid pro quo. Even if there was, it’s [it would?] be fine “
The both Spiro and Bove go off on a rant about the partisan bias of the amici.
My sense is the Ho was carefully picking his way through so that he can use the record in created by the blustering before him, to justify saying that there appears to be a departure from regular practice and procedures which warrants further investigation, and the court would be assisted by independent counsel.
The thread by the AG’s CoS Mizelle is surely grist to that mill, because it must be seen as an authorised publication at the highest level, which misrepresents the Judges own ruling on significant matters, and so is at least highly irregular, and definitely a challenge to the Court’s authority.
I HIGHLY doubt he’ll appoint an independent counsel.
But my take is close to yours. I think Greenberg missed the significance of some of the questions. I think he may have follow-up.
Re counsel,
Perhaps I have allowed my own desire for blood and thunder to cause me to over-interpret the exchange I quoted. However, there is no doubt that there is plenty to pick over should Judge Ho feel so inclined.
I agree. His question about a police commissioner or a border governor was, IMO, key. Because Trump has already targeted Hochul and Tish James. It was’t an empty question.
What are the possible outcomes if the withdrawal is rejected? Appeal? Try again? Nothing, and be like Schrödinger’s Cat being both alive and dead or convicted and not convicted?
Schrödinger’s Cat is only in between states when unobserved. Adams is smart enough to have embraced the Trump trick of controlling status through being constantly observed to declare status (“there was no quid pro quo”) whether or not those declaration are, as we say in science, data driven. Bove seems to be embracing \\but less adept at the same reality-creation skill set. I struggle to see an outcome here that includes any of the major players lapsing into an unobserved situation.
I think the most likely outcome is dismissal w/prejudice.
Yes.
Bove told the judge, “I’ve boxed you into a corner, whether there was a quid pro quo doesn’t matter, and you have no choice but to rule the way that I want you to rule”.
Basically, it was an “I own you” to Judge Ho. The arrogance is astounding.
The arrogance is only matched by the rank stupidity.
#1 I tend to agree with ScroogeMcD. And Bove’s arrogance and stupidity have probably exposed him to further scrutiny by Ho.
I am going to thread these observations because they get a little in the weeds
A significant set of exchanges concerned regarding para 5 of the nolle motion occurred about 30 minutes in to the hearing
#2 But first some background:
In this post Marcy quotes paras 5 and 6 in full
Emil Bove’s Missing Documents – https://www.emptywheel.net/2025/02/16/emil-boves-missing-documents/
[para 5,6 quoted in in full]
And Marcy notes this
“Ho can easily dismiss Bove’s first rationale — the appearance of impropriety — because (as Sassoon noted) he already did, in a ruling on one of Adams (and Elon Musk) attorney Alex Spiro’s serial claims that the government was leaking grand jury information.”
#3 And in this comment https://www.emptywheel.net/2025/02/16/emil-boves-missing-documents/#comment-1087632 February 16, 2025 at 3:36 pm
1 I drew attention to Hagan Scotten’s arguments ie the DOJ position on appearance of impropriety (which led to Ho’s ruling on 22 Jan 2025)
And 2 I set out 3 things I believe Bove ought to be clarifying for the Court, and which Ho is entitled to insist upon, ie complete candour so he can know who has misled him and when.
Bove however, in the first and second instances has chosen to bluster and obfuscate.
#4 I am working from two threads (InnerCityPress, Adam Klarsfeld) for how this was dealt with at the hearing
ICP
https://bsky.app/profile/innercitypress.bsky.social/post/3likjdowgws22
14:33 ET
Judge Ho: Mr. Bove, does the Government have other reasons for this motion?
Bove: I do, but we’re not asking the government [Court ?] to rely on anything beyond this.
Judge Ho: What are the bases of the motion?
Bove: Prosecutorial discretion, against weaponization of law
#5 apparently the discussion goes on to para 6, but then returns to para 5
https://bsky.app/profile/innercitypress.bsky.social/post/3likjl5xkgc22
14:37
‘Bove: Paragraph 6 implicates Presidential power, unreviewable in this courtroom. This prosecution impedes immigration enforcement.
Judge Ho: Are you focused on the appearance of impropriety?
Bove: The Department is investigating this.
I am here to answer your Qs‘
#6 Klarsfeld reporting covers the same ground but records slightly different details in 3 tweets
https://bsky.app/profile/klasfeldreports.com/post/3likjgbrunc2l
14:34ET
[Klarsfeld includes para5 of nolle motion as a screenshot ]
‘Bove alludes to the part of the dismissal motion asserting “appearances of impropriety,” and then says this:
“I think it goes further than that: It is an abuse of the criminal process.”
Bove asserts that the government’s discretion here is “virtually unreviewable in this courtroom.”’
14:36 ET
‘Judge Ho says he has a “few questions” about the contours of Bove’s claim about “appearances of impropriety”: Is he saying that it was “actually motivated by improper” motivations?
Bove says the appearance of impropriety is sufficient for the motion.’
14:37 ET
‘Bove says the actual motivations of the prosecution is the “subject of a couple of ongoing investigations by the Department.”’
#7 So Bove has left the Court in this position:
A) OT1H there has been the appearance of (and I, Bove, believe – actual) impropriety, in the weaponisation of prosecution of Adams
“An abuse of the criminal process”
(and parenthetically, you have been induced to rule wrongly on this subject by a DOJ argument we now disavow, but just take that from me it’s all ok now, on my say so as a presumptively regular ActingDeputyAG, because I am taking unspecified but serious steps)
B) OTOH there has been no quid pro quo, and even if there was it would be ok because something something presidential power something prosecutorial discretion something presumption of regularity something, so don’t worry about actual or apparent weaponisation in this regard
IMO, the hearing yesterday gets to two places on those ¶¶.
¶5: Bove claims that the govt has reviewable authority to determine appearance of impropriety, even tho the judge has already ruled there is none.
¶6: Bove has leaned heavily (then maybe abandoned) the security clearance thing, but Trump has already prevented Tish James and Alvin Bragg from classified info as the chief LE in NYC and NYS.
Neither of those hold water.
Then you add the “without prejudice” bit, which four top NYC officials have said creates the appearance of impropriety.
@EW
Of course, you are absolutely correct to re-emphasise the point you made previously about para 6 (‘Adams ability to do his job, with ICE’)
I should have made it clearer that para 5 issues is but one aspect of the problem with Bove’s argument, and the focus of my observation on that aspect was in no way intended to suggest it was the sole problem. Far from it.
I do think, though, that consideration of the issues arising from para 5 perhaps offers a way in for Ho to demand responses from Bove, using his general powers to control the proceedings before him.
Because, quite apart from the discretions conferred on the court under Rule 48 (a)
(ie to grant leave to dismiss with consent of the defendant, and the discretion regarding whether the leave is granted to dismiss with or without prejudice),
the court also has its general powers and duties to control its own proceedings, particularly where it is now the stance of the DOJ that the prosecution of Adams was/appeared to be improper/weaponised, and arguments advanced before the court to the contrary, were wrongly made.
As such the question of conduct of the DOJ then and now arises to be considered under the broader powers of the court.
@SteveBev, 11:58 am, 2/20:
And meanwhile Hochul continues to dither on Adams’ removal, even as she has the compelling argument of his loss of security clearance at hand. Maybe she’s hoping it gets restored soon so her refusal to dismiss him (please Gov, prove me wrong) won’t look so bad.
…and to follow that comment:
I hadn’t caught this news yet:
https://www.nytimes.com/2025/02/20/nyregion/hochul-adams-nyc-oversight.html
So my statement in an earlier post stands: she’s the reincarnation of the pre-Reichstag-fire German establishment’s coddling of Hitler.
From Inner City, from Bove who worked on various v. Trump cases (I wonder if Ho knows) https://x.com/innercitypress/status/1892316685610185011:
“After the US v Eric Adams hearing: Bove opposed amicus brief by Mark Pomerantz & Carey Dunne, saying they worked on NY v. Trump criminal case. Judge Ho took it under advisement,”
It was said during the hearing
https://bsky.app/profile/innercitypress.bsky.social/post/3liklrlj47k22
https://bsky.app/profile/klasfeldreports.com/post/3likls4lisp2r
BRUCE F COLE
February 21, 2025 at 3:49 am
From my perspective, whatever might be the “Reichstag of the USA” it’s been aflame for some time.
I think the thing most noteworthy about Mizelle’s screed is that it is disingenuous. If DOJ believed the charges against Adams lacked merit, they would move to dismiss with prejudice. Instead, they want to keep the threat of prosecution hanging over his head.
Yes indeed.
Outright weaponization and putting a leash on an elected official, by a political prosecutor-cum-partisan defense lawyer whose regional team proclaimed no faith in his word or intentions or prudent and legal action.
Extremely disingenuous in every way, context and time of communications and authority of position and proclaimed stance in the face of all facts, rulings and similar cases in motion to the day.
Quite the sick and corrupt record apiece and together.
Why is Turkey so bent on avoiding a building inspection? Is it to protect some sort of eavesdropping or collection activities?
To my sight via what reports I have seen since the beginning, probably just them running behind on time (as we all do in life), skating into a forging of Omerta, NYC Intl style.
Then into Maga snuffed up stuffing of the gut trying to get fuel and bile and pole position on steering this mess for corrupt benefit of their goals and degradation of power of law and truth.
Too short on time to see signs of other subterfuge. Don’t doubt it could be right there.
Supposedly the building did not meet fire code requirements.
But why make such a fuss over a fire inspection?
Would fire inspectors stumble on some surveillance equipment? Is the point to get Adams leveraged over something minor so that they could use him for a bigger purpose?
The inspection was completed (not would) and this news report doesn’t say anything about the inspectors stumbling upon surveillance equipment:
*over 60 fire defects, some of the defects each list 5-10 problems, some of which were serious
*the 36-story skyscraper cost nearly $300 million to build [what’s another $10k or so instead of who knows how much more?]
*so that the consulate could be opened by Turkish president, Erdoğan, who was visiting New York for U.N. Week [again, what’s another $10k or so to make the “king” look good to his countrymen?]
https://www.newsweek.com/new-york-mayor-eric-adams-turkish-bribery-indictment-consulate-fire-department-1960253
It’s very easy to get leverage over something minor over Adams: In his first election campaign he lied that he was resident of NYC when he was really living in NJ.
If Ho were to dismiss, with prejudice, what happens?
The impact upon Adams’ career has already happened, where a dismissal with prejudice will allow him at least more chance to run his campaign as he might feel best, with nothing hanging over his head as a threat.
The Bondi folks cannot credibly appeal, can they, it’s not what we sought, we wanted strings attached, but cannot in public say why? That’s a tough appeal to brief without career ruining effect for the lawyer tasked with it and doing it instead of resigning.
The whole legal world knows what is going on, per the string of resignations.
Presuming Ho is not dumb, what consequences to him of doing that? Some will agree it is best, some will carp over whatever he does, so why not dismissal with prejudice and clear the docket? This Bove/Bondi thing is so smarmy that if it all went away it might be best for them too
Homan has not been helpful to the – dare I say as a guess – attempted fraud on the court – that he deserves a dismissal with prejudice where Adams is not in thrall, as it will make Homan’s job of numbers harder. And that is better. Where am I wrong?
Is it a tough appeal with the SCOTUS?
He does have immunity.
Error Prone, referring to Adams’s case, you say above that “…a dismissal with prejudice will allow him at least more chance to run his campaign as he might feel best.” I’m wondering, his “campaign” for *what* exactly?
My first thought was Brooklyn’s Envoy to the Turkish Embassy. But then it occurred to me that they’ve already gotten what they wanted out of Adams.
Dismissal with prejudice based upon unethical conduct by Bove, and referral of Bove to bar disciplinary authorities.
Louis Ciminelli and Joseph Percoco were both charged with honest services fraud in connection to the Buffalo Billion scandal for rigging bids for public construction contracts from Andrew Cuomo’s Administration (Elon Musk and his cousin also received hundreds of millions in tax breaks and incentives for factories for Tesla and Musk’s cousin’s solar panel company). They appealed their convictions all the way to the Supreme Court and won in 2023. In 1991, Louis Ciminelli was named in a racketeering lawsuit along with Buffalo mafia underboss and Pharaoh’s strip club owner Peter Gerace over labor fraud. Gerace is a nephew of the head of the Buffalo mafia Joseph Todaro. Gerace was just convicted for bribing DEA agent Joseph Bongiovanni on December 27 last year. Donald Trump, Cheng Yu-tong and his son Henry Cheng (owners of Chow Tai Fook), Andrew Cuomo (then-Assistant Secretary for Community Planning and Development HUD) were all involved in the Riverside South development project in 1994. Trump was in debt and the Chengs bailed him out. https://www.nytimes.com/1994/04/17/nyregion/trump-to-seek-federal-help-to-get-riverside-south-under-way.html
Justice Department to drop discrimination case against Elon Musk’s SpaceX [NYT, via Seattle Times]
With prejudice, of course.
“The U.S. Justice Department said Thursday that it would dismiss a case against Elon Musk’s SpaceX, in which the rocket company had been accused of discriminating against people based on their citizenship status.
In an unopposed motion filed with the U.S. District Court in the Southern District of Texas, the Justice Department said it intended to file a notice of dismissal with prejudice, which means prosecutors would not be able to file these charges again.
The motion did not say why the case was being dropped….”
https://www.seattletimes.com/nation-world/nation-politics/justice-department-to-drop-discrimination-case-against-elon-musks-spacex/