Dale Ho Brings in the Conservative Cavalry
Wow. Judge Dale Ho came up with a remarkable approach to deal with DOJ’s request to dismiss the Eric Adams prosecution.
First, he canceled the trial for now, taking away one of DOJ’s major claimed problems with the case against Eric Adams. He also said that Adams doesn’t have to show up at any hearings for now.
Then, he asked Paul Clement — as opposed to the several people who offered to serve as an amicus to help him consider the issue — to address the following questions.
1) The legal standard for leave to dismiss an indictment under Rule 48(a);
2) Whether, and to what extent, a court may consider materials other than the Rule 48(a) motion itself;
3) Under what circumstances, if any, additional procedural steps and/or further inquiry would be appropriate before resolving a Rule 48(a) motion;
4) Under what circumstances, if leave is granted, dismissal should be with or without prejudice;
5) If leave were denied under Rule 48(a), what practical consequences would follow, including whether dismissal would nevertheless be appropriate or necessary under other rules or legal principles (e.g., for “unnecessary delay” under Rule 48(b) or under speedy trial principles, see United States v. N.V. Nederlandsche Combinatie Voor Chemische Industrie, 453 F. Supp. 462, 463 (S.D.N.Y. 1978)); and
6) Any other issues the parties or amicus consider relevant to the Court’s resolution of the Government’s motion.
Clement was George W Bush’s Solicitor General and has argued a slew of cases before the Supreme Court. Like we assume Danielle Sassoon and Hagan Scotten will someday be, he’s a right wing legal superstar; Clement was, like Sassoon, an Antonin Scalia clerk.
As several people have noted, the language Ho used to justify appointing an amicus is language that invoked Clement’s appointment in another important case, by name.
Accordingly, to assist with its decision-making via an adversarial process, the Court exercises its inherent authority to appoint Paul Clement of Clement & Murphy PLLC as amicus curiae to present arguments on the Government’s Motion to Dismiss. See Seila L. LLC v. Consumer Fin. Prot. Bureau, 591 U.S. 197, 209 (2020) (“Because the Government agrees with petitioner on the merits of the constitutional question, we appointed Paul Clement to defend the judgment below as amicus curiae. He has ably discharged his responsibilities.”)
So one of Joe Biden’s most liberal appointees hired one of the most prominent conservative lawyers in the country.
Smart fella
I found it interesting on page 3 that Ho highlighted the Government’s comment in a filing, “that amicus participation will not ‘meaningfully aid’ the Court in this case…”
He’s contradicting their (strategically) offered advice.
It’s called getting Paul Clement and his opinion on record now before Clement finds himself possibly arguing in front of the SCOTUS sometime in the future.
Excellent move by Judge Ho!
When I saw the livetweets of the hearing, my first thought was that this sounds just like what happens when there is no argument on a case because the parties agree. It sounded like the acceptance of a guilty plea, which is almost never a contested matter. The judge asked the questions necessary to establish grounds for the action, not about the way the decision was reached or any other matter.
Oh, I strongly disagree. Just the question about clearance gave Ho reason to deny.
Oh no, like bmaz, you’re offending another of your stalwarts.
It looks like mentioning bmaz gets me “Your comment is awaiting moderation.”
So, for the woefully uneducated on “inside legal baseball” such as myself, why would a lawyer who got closer than almost anyone else in the country to killing the ACA as just ONE of his many accolades accept this assignment?
For the same reason a bunch of conservative prosecutors would resign rather than comply with the order to drop the case.
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The quaint concept of “defending the rule of law” comes to mind.
Then I will borrow your optimism, as I have little left in the tank.
I wonder if SCALIA clerks network like THOMAS clerks do.
I think pretty much all clerks network. I was a state appellate court clerk many years ago, and when the judge passed away, an email thread with all of the former clerks started up pretty quickly. And I had not been practicing for over at least 15 years.
He also cites US vs Flynn, which could be interesting for a few reasons. Would love your take on that.
It’s the most relevant precedent.
I’m legally challenged, so is this a good or a bad thing?
Yes. But I was thinking of how Judge Sullivan also ran up against another corrupt motion to dismiss, as you’ve reminded me, and as you lay out well in a prior posts, which I’m going back through to reread. I’m probably getting too far ahead of myself envisioning how DOJ will eventually and inevitably end up rebuking itself in this case – particularly with the DC council member bribery charge going on at the same time. It’s a rats nest of corrupt shit to unpack.
It’s the most relevant (if out of circuit) precedent, and one that was ultimately mooted prior to any district court (or likely SCOTUS) resolution by Trump’s pardon.
I think this is interesting, but not necessarily extraordinary. Maybe I think that because when I hoped for representation by ACLU, I was told they were representing the white supremacist militia group and couldn’t help me.
But these many years later, I realize there was much more to that story (although I doubt I will ever reveal what I think may have actually happened.) Regardless, it seems like this decision by Ho has the potential to successfully work through a sticky wicket.
So, the next interesting thing will be seeing who might submit other briefs (if any), and whether or not there will be oral argument. Game on.
My sense of this is that Judge Ho suspects, like his fellow ex-Scalia-clerks Sassoon, Clement will want none of this rotten deal.
It would be odd to hire someone without speaking to them first, wouldn’t it? I don’t know exactly what the protocols are here. Would it be improper to discuss the case a little bit with someone before appointing them in this way?
And in agreeing to serve (has that happened?), Clement offers to go on record early. I mean, I’m guessing which way this breaks. Policy does not equal rule of law. Scotten and Sassoon would probably have argued against the ACA given the opportunity. This looks like Judge Ho is going to platform one of the brightest conservative legal lights and give him a license to blast.
If Dale Ho just wanted to submarine the extortion effort against Adams by finding an amicus who would call for dismissing the case with prejudice, he could have done that with any one of several dozen members of the NYC Bar.
Instead, he picked the man with one of the best SCOTUS records of anyone alive.
Ho intends to see this case all the way to the Supreme Court if he must.
I’m not sure “extortion” applies here. It appears to me to be a quid pro quo, a lifeline Adams is happy to grab onto to save his own behind, no matter who gets hurt. After all, he’s been working Trump for some time.
Would it be possible for Judge Ho to find that the proper venue for this case is the courts of the state of New York? Toss the case and remand to the proper venue?
Speaking of New York City. Per reports, the City is suing Trump and his administration over the reversal of an $80 million transfer that FEMA made to the city earlier this month. According to the suit, the feds accessed a New York City bank account and took back the $80 million in FEMA funds, without telling the city about its decision or rationale to claw back the money that it had earmarked to cover the costs of housing migrants that New York City has been paying for. Seems Mayor Adams approved filing the lawsuit.
A couple takeaways. First, I assume that a lot of that “federal money” came from the pockets of NYC taxpayers. Second, remember to change your bank account (number) when something big happens.
Once the money’s been disbursed, it isn’t the government’s money, unless they can show probable cause for taking.
NYC MTA is also suing in response the the EO revoking congestion pricing in Manhattan. Took them about an hour to respond +/-.