Judge Dale Ho’s Messy Dockets

As we wait for Judge Dale Ho to rule on whether he’ll dismiss the Eric Adams case, I want to return to a point I made here, because it may change the import of an exchange that occurred in the hearing on Wednesday.

Ho doesn’t just preside over Eric Adams’ case. He also presides over the case of Erden Arkan, the construction company owner implicated in organizing straw donors supporting Adams. Arkan already pled guilty to conspiring to arrange those straw donors on January 10.

And as of a few weeks ago, Ho was meant to preside over the case of Mohamed Bahi, a former top Adams aide implicated in the straw donor conspiracy.

On Thursday, February 6, prosecutors — including the now-resigned Hagan Scotten, Derek Wikstrom (whom Emil Bove put on leave along with Scotten last week), as well as Celia Cohen and Andrew Rohrbach (who along with the others, withdrew from the Adams case last Friday and whose leave status is unclear) — filed a notice of a related case.

In addition to Adams and Arkan, both before Ho, it listed Mohamed Bahi as a related case at that point pending before Judge Analisa Torres.

The Government respectfully submits this letter regarding the three above-referenced cases, which arise out of related conduct and concern co-conspirators.

[snip]

On January 10, 2025, the Government filed Information 25 Cr. 13 (DEH), charging defendant Erden Arkan in one count with conspiracy to violate the laws of the United States, in violation of 18 U.S.C. § 371. The charged object of that conspiracy is committing wire fraud through the collection of campaign contributions made under the name of someone other than the true contributor, and the subsequent request for public funds based on the misrepresentation that those contributions originated from the named contributor. Arkan was initially assigned to Judge Vargas, but was transferred to Judge Ho pursuant to the District’s related case procedures. Also on January 10, 2025, Arkan pled guilty before Judge Ho to the sole count of the Information. The conduct for which Arkan pled guilty forms a part of the conduct charged in Counts One and Two of the Adams Indictment, and Arkan is identified in the Adams Indictment as “Businessman-5.” (See United States v. Adams, 24 Cr. 556 (DEH), Dkt. 1 ¶ 30).

On February 6, 2025, the Government filed a notice of intent to file an information charging Mohamed Bahi in a single count with conspiracy to violate the laws of the United States, in violation of 18 U.S.C. § 371. The charged object of that conspiracy, as in Arkan, is committing wire fraud through the collection of campaign contributions made under the name of someone other than the true contributor, and the subsequent request for public funds based on the misrepresentation that those contributions originated from the named contributor. The conduct charged in the Bahi information forms part of the conduct charged in Counts One and Two of the Adams Indictment, and Bahi is identified in the Adams Indictment as “Adams Employee-1.” (See United States v. Adams, 24 Cr. 556 (DEH), Dkt. 1 ¶ 28.a). In connection with that case, Bahi has indicated that he intends to plead guilty to the sole count of the Information against him. [links added]

This notice appears in the Adams docket and the Arkan one. But as far as I can tell, there’s no (unsealed) Bahi criminal docket; if there were or is one, the notice of related case should have landed on the docket before Judge Ho within a day — that is, perhaps the same day that Emil Bove ordered Danielle Sassoon to kill the prosecution against Adams.

When Mohamed Bahi, a former top Adams aide, was first charged in October, he was charged with two counts of obstruction, not the wire fraud conspiracy described to be the subject of the Information to which he would plead guilty. The FBI affidavit supporting Bahi’s arrest relies on the proffered testimony of Arkan and employees who made straw donations to Adams.

Each of these five witnesses was interviewed by the FBI on or about June 13, 2024, and, in sum and substance, denied having been involved in straw donations. Each of these witnesses was subsequently interviewed, pursuant to proffer agreements and while represented by counsel, and it is these counseled, proffer-protected interviews that are described in this paragraph. Each of these witnesses agreed to speak with law enforcement in the hopes of receiving leniency in connection with this investigation. In the course of proffering with the Government, the Businessman admitted his involvement in straw donations to Official-1’s mayoral campaigns and in an unrelated fraud offense. The information these witnesses have provided has proven reliable and is corroborated by other evidence. [my emphasis]

Which means Arkan is likely the one who told the FBI about conversations he had with Bahi regarding lying to the FBI, conversations in which Bahi told Arkan he had spoken to Adams before and after Arkan and his employees lied to the FBI on June 13, 2024.

c. During the private meeting between BAHI and the Businessman on or about June 13, 2024, BAHI told the Businessman that he had just spoken with Official-1. BAHI then asked the Businessman to describe his interactions with the FBI. After the Businessman told BAHI that the Businessman had denied having funded straw donations to Official-1 when questioned by the FBI, BAHI advised the Businessman that if he continued to tell that lie to federal investigators the Businessman would be ok.

d. BAHI then met with the Businessman and the four Donors. BAHI asked each of them to describe their interactions with the FBI. BAHI took photographs of the grand jury subpoenas that had been served on the Donors and the Businessman.

e. During the meeting between BAHI, the Businessman, and the four Donors, BAHI encouraged the Donors to lie to federal investigators by denying that they had made straw donations to the 2021 Official-1 Campaign, and remarked that because the Donors’ contributions to the 2021 Official-1 Campaign had been reimbursed in cash, the FBI would be unable to prove that the reimbursements had occurred.

f. On or about June 14, 2024, BAHI again met with the Businessman. During that meeting, BAHI indicated to the Businessman, in substance and in part, that BAHI had met with Official-1, and that Official-1 believed that the Businessman would not cooperate with law enforcement. [my emphasis]

But the notice of related case doesn’t say Bahi was pleading to those obstruction charges. Rather, he was pleading to the straw donor conspiracy, just like Arkan.

On February 7, Wikstrom (whom Emil Bove put on leave to prevent him from doing any more “targeting” of Eric Adams), got a third continuance in the Bahi case, until March 10.

3. The defendant, defense counsel, and the Government have entered into a written plea agreement to resolve this case, and are in the process of having the case assigned to a district judge and scheduling a waiver-of-indictment and change-of-plea hearing. Such a hearing has not yet been scheduled, and the parties do not anticipate being able to hold it before the February 7, 2025 deadline under the Speedy Trial Act.

4. Therefore, the Government is requesting a 30-day continuance until March 10, 2025, to finalize the foregoing discussions and reach a disposition of this matter. Defense counsel Derek Adams, Esq. has consented to this request. This application has been authorized by Assistant United States Attorney Jane Kim, Deputy Chief of the Criminal Division.

That means several things.

First, the continuances, plus the swap of the straw donor conspiracy for the obstruction charges, suggests that Bahi has likely also been chatty about what went down, and perhaps not just in those conservations with Mayor Adams before and after he allegedly convinced Arkan to lie to the FBI.

That’s almost certainly what Danielle Sassoon was talking about when she described a planned obstruction indictment to Pam Bondi.

As you know, our office is prepared to seek a superseding indictment from a new grand jury under my leadership. We have proposed a superseding indictment that would add an obstruction conspiracy count based on evidence that Adams destroyed and instructed others to destroy evidence and provide false information to the FBI, and that would add further factual allegations regarding his participation in a fraudulent straw donor scheme.

But it also means that if the Information is not filed by March 10 (or another continuance obtained from whatever judge is presiding over the case), it would disappear of its own accord on Speedy Trial grounds.

Who knows what the status of all that is? Who knows what happened between February 7, when Wikstrom said they were going to file an Information and asked to move Bahi’s case before Judge Ho, and February 13, when Bove put him on leave?

The fact that there’s an all-but indicted conspiracy charge against Adams, possibly already before Ho, with a statute of limitations that extends to 2029, changes the import of several things said in Wednesday’s hearing (as captured here by Anna Bower). When Ho asked Bove if there were limits on what DOJ could charge going forward, Ho likely knew that meant that DOJ would have something over Adams for almost the entire balance of Trump’s [presumed] term.

Judge Ho wonders aloud whether there are “any limits” to the Department’s ability to re-indict Adams later on. In reply, Bove mentions some “standard” limitations on the Justice Department’s discretion. For example, he says, there could be time limits related to the statute of limitations or the Speedy Trial Act. The Justice Department may or may not revisit the case at another time, he adds, but there aren’t any plans for that at this time.

Judge Ho follows up by asking whether the Justice Department is contemplating any additional “investigative” steps.

No, Bove replies.

And then, seemingly right after that exchange, Ho turned back to Adams and asked about this, Adams — under oath — told Judge Ho that he had not committed a crime. After which Ho reminded Adams that he can consult his lawyer before he asserts, under oath, that he didn’t commit a crime.

Turning back to Adams, the judge asks whether he understands all of this.

“I have not committed a crime. I don’t see them bringing it back. I’m not afraid of that,” the mayor replies.

At this, Judge Ho reminds Adams that he can consult with his lawyer at any point during this hearing.

“I appreciate that because I failed my law class,” Adams quips in response.

If I were Adams, I’d be stewing over claiming to Judge Ho that, “I have not committed a crime,” just before Ho advised him he should consult with his lawyers before he says anything stupid, under oath, for fear of committing a new crime before a judge who has more leeway to police things that go on in his courtroom.

And the fact that a mostly-charged obstruction charge against Adams is or was supposed to be before Dale Ho changes a number of factors in his consideration of the public interest. Bahi’s charges may expire within days (unless that Information did get filed). But Arkan will get sentenced over the summer regardless of what happens — and if prosecutors aren’t involved, he won’t get the benefit of any cooperation. That’s not fair to him.

At the very least, Ho has a very good sense of what would be hanging over Adams’ head for the next three-plus years, a threat that — just as the indictment itself does — might impact his ability to govern.

Dale Ho’s docket makes it pretty clear that Emil Bove intervened when he did to prevent SDNY from describing the full extent of Mayor Adams alleged efforts to obstruct an investigation into his actions.

But it’s not clear how well Bove succeeded.

Update: Wow. One of Joe Biden’s most liberal judges appointed conservative Republican Paul Clement to serve as his amicus.

ORDER as to Eric Adams. On February 19, 2025, the Court held a conference on the Government’s Motion to Dismiss the Indictment in this matter under Rule 48(a), see ECF No. 122. In light of the Government’s motion and the representations of the parties during the conference, it is clear that trial in this matter will not go forward on April 21. Accordingly, trial is ADJOURNED SINE DINE. The Order setting a pretrial schedule, ECF No. 87, is hereby vacated, and all deadlines set forth therein are also ADJOURNED SINE DIE….[*** See this Order ***]… 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.”). The Court expresses its gratitude to Mr. Clement for his service and will provide Mr. Clement a copy of this Order and the transcript from the February 19 conference. It is hereby ORDERED that the parties and amicus curiae shall address: 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. Briefs shall be due no later than March 7, 2025. If necessary, the Court will hold oral argument at 2:00 p.m. on March 14, 2025. The Court notes that it has considered the parties’ views with respect to the appointment of amicus and concludes that an appointment is appropriate here to assist the court’s decision-making. That is particularly so in light of the public importance of this case, which calls for careful deliberation. The Court reiterates that it understands the importance of prompt resolution of the pending motion and will endeavor to rule expeditiously after briefing (and, if necessary, oral argument) is complete. The adjournment of trial and all related deadlines alleviates any prejudice resulting from a short delay. Moreover, in light of the concerns raised by the parties regarding the Mayor’s responsibilities and the burden of continued court appearances, the Court notes that while Mayor Adams has a right to appear at any future proceedings, he need not do so given the current procedural posture. See Rule 43(b)(3) (“A defendant need not be present” where “[t]he proceeding involves only a conference or hearing on a question of law”). In other words, absent an order of this Court stating otherwise, Mayor Adams need not appear and need not file a notice voluntarily waiving his appearance at future proceedings, if any, on the Government’s Motion to Dismiss. Finally, in light of Mr. Clement’s appointment as amicus, the Court does not believe there is a need for additional amicus participation at this stage. Nevertheless, to ensure that the parties and appointed amicus have an opportunity to respond to arguments made by other amici, if any, any motion for leave to participate as amicus must be filed, with the proposed amicus brief, by February 28, 2025. The Court will not consider any motions for amicus participation after that date. Any opposition to such a motion by a party shall be filed by March 5, 2025. SO ORDERED. (Signed by Judge Dale E. Ho on 2/21/2025) (bw) (Entered: 02/21/2025)