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Chad Mizelle’s Appearance of Impropriety

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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.

The Law Is Bigger Than The Bullies

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Emil Bove III is a bully. There’s only one way to deeal with a bully: fight back harder.

Consider Bove’s treatment of the public integrity section lawyers as part of his campaign to dismiss the prosecution of Eric Adams. In the end, two lawyers and Bove himself signed the pleading. The motion says that Bove made the decision himself; his signature is an admission of that fact. Now the matter goes to District Court Judge Dale Ho. Marcy has a good description of the current status.

What are Judge Ho’s options? One suggestion made by three former prosecutors is the appointment of a special counsel to examine the actions of the DoJ with respect the dismissal. They suggest that the special counsel could recommend several courses of action, including disciplinary proceedings. The Immigration and Nationality Law Committee of the New York City Bar Association echoes this recommendation.

Disciplinary proceedings

Lawyers are subject to ethical obligations in their handling of legal matters. I don’t know where the lawyers involved in this decision are licensed, so I don’t know the particulars of the rules or proceedings that would apply to them. In general, most states have adopted a version of the ABA Rules Of Professional Conduct (“ABA Rules”).

The Federal Rules Of Criminal Procedure  do not have a rule equivalent to FRCP 11, discussed here. ABA Rule 3.3 is  similar to Rule 11. It prohibits lawyers from making false statements of fact or law to the court or to offer evidence known to be false. Here’s the text of ABA Rule 3.3(b):

(b) A lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal.

ABA Rule 8.4  is directly implicated in this case. Here’s the relevant text:

It is professional misconduct for a lawyer to:

(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;

(b) commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects;

(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation; ….

The history of ABA Rule 8.4 can be found in this opinion of the Standing Committee On Ethics and Professional Responsibility from 1992. The predecessor of this rule is DR 7-105(a), which provided “A lawyer shall not present, participate in presenting, or threaten to present criminal charges solely to obtain an advantage in a civil matter.” New York did not delete DR 7-105(a) when it updated its Rules of Professional Conduct. Footnote 2 contains a partial list of other states that kept the old rule.

There’s a lot of speculation floating around suggesting there’s a hidden agreement between Adams and Trump or his henchmen about immigration enforcement by NYC officials and/or something else. We can’t know all the facts. It’s notable that so many career DoJ officials resigned rather than dismiss the case, but that’s not conclusive. Tom Homan, Trump’s Border Czar, spouted words that some saw as confirming the quid pro quo, but he denied that later.  In any event, the dismissal without prejudice seems to give the DoJ the ability to force Adams to act as Trump wishes or face revival of the charges. Here’s an example:

“Eric Adams no longer works for New Yorkers. He works for Donald Trump. Period,” state Sen. Zellnor Myrie, a mayoral candidate, said at a news conference. “Mayor Eric Adams will be under the thumb and control under Donald Trump until November.”

Let’s look at that possibility. It certainly looks like the use of the threat of criminal prosecution to achieve the Trump Administration’s desires in utterly unrelated civil matters. That’s an obvious violation of the provisions of DR 7-105(a) as in effect in New York, save for the word “solely”.

Also, in general, threatening criminal action to obtain something of value is a crime, the crime of extortion. The elements of that crime are

1. A threat to a person
2. For the purpose of gaining some material end
3. With the statutory mens rea,

The threat can be a threat of criminal prosecution, as every lawyer will tell you.

If a case like this one came before a Disciplinary Board under the equivalent of DR 7-105(a) the burden would be on the movant to show that there was no other lawful purpose for the dismissal without prejudice than to force Eric Adams to act as Trump or his henchmen want him to. Bove claims that the investigation will continue, although the case is ready for trial as it stands. I’d guess the facts are enough to shift the burden of proof to the target to show that there is a need for more investigation or some other lawful purpose.

If the case is under ABA Rule 8.4, the burden is on the movant to show that the target committed the crime of extortion, or that the target used others to achieve that result, or that the target lied about the facts or the relevant law.

It may be that the target’s position as a public official increases the likelihood that discipline is appropriate. Here’s Comment 7 to ABA Rule 8.4:

Lawyers holding public office assume legal responsibilities going beyond those of other citizens. A lawyer’s abuse of public office can suggest an inability to fulfill the professional role of lawyers. The same is true of abuse of positions of private trust such as trustee, executor, administrator, guardian, agent and officer, director or manager of a corporation or other organization.

What about the other lawyers? Whether or not they resigned, they are covered by ABA Rule 3.3(b) above. All DoJ lawyers represent the US, so it may be that they or other DoJ lawyers have obligations under that rule.

Discussion

1. John Eastman was deeply involved in Trump’s schemes to stay in office after being beaten by Joe Biden in 2020. A group of lawyers and judges filed a complaint with the State Bar of California asking that his law license be revoked. That matter was finally resolved in March 2024, when Eastman was disbarred. That’s too slow. If bar discipline is to have any meaning, it must be rapid, especially in the face of this lawless administration.

2. The advantage of bar discipline is that Trump and his henchmen can’t do anything about it. Admission to the bar is solely the responsibility of the Supreme Court of each state. The federal government has no role whatsoever in the matter, and Trump has no legal or financial leverage.

3. The threat of loss of his law license may not affect Bove, but it will haunt every career DoJ lawyer. Who knows, it might even affect the decisions of Trump-addled lawyers who might think of joining the DoJ.

4. DoJ lawyers have forfeited any claim to judicial respect. They should be shamed by every court. Here’s a delightful example. Here’s another from Judge Coughenour in the Seattle birthright citizenship case:

“In your opinion is this executive order constitutional?” he asked.

Said Shumate, “It absolutely is.”

“Frankly, I have difficulty understanding how a member of the bar could state unequivocally that this is a constitutional order,” Coughenour said. “It just boggles my mind.”

DoJ lawyers should not be forced to give up their self-respect just to hold on to a job.

Dale Ho Asks for Signed Consent from Eric Adams; Alex Spiro and Bill Burck Don’t Provide It

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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.

Emil Bove’s Missing Documents

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Imagine you’re Judge Dale Ho.

You’re presiding over the Eric Adams case, that of his co-conspirator Erden Arkan, and have gotten notice of another co-conspirator, Mohamed Bahi, as a related case (meaning that Bahi is likely supposed to plead guilty before you in coming days — what was intended as a last step before superseding Adams with obstruction).

The Adams case has blown up very publicly. The prosecution team has been withdrawn from the case. But even before that, the Acting Deputy Attorney General has requested you dismiss the case, without prejudice. You know Bove’s pulling a fast one. But technically, the only things before you are the Nolle Prosequi request and the withdrawal motion.

What do you do? Even beyond the question of whether you grant the request to dismiss without prejudice (Bove’s ask), you dismiss with prejudice (perhaps the easiest and most legally justifiable thing to do), or you muck things up, what do you do to get there?

Four documents pertaining to this blow up (in addition to the ones filed before Judge Ho) were released publicly last week. Here’s the purpose they ostensibly serve:

  • February 10: Emil Bove tells Danielle Sassoon to dismiss the case, without prejudice
  • February 12: Danielle Sassoon asks Pam Bondi to meet
  • February 13: Bove responds to Sassoon, accepting her resignation
  • February 13: Hagen Scotten resigns

But the documents do more. All four of them weigh in on two key paragraphs that made it into the Nolle Prosequi letter: the two stated reasons for dismissing the case against Adams, which look like this in the dismissal request:

5. In connection with that determination and directive, the Acting Deputy Attorney General concluded that dismissal is necessary because of appearances of impropriety and risks of interference with the 2025 elections in New York City, which implicate Executive Order 14147, 90 Fed. Reg. 8235. The Acting Deputy Attorney General reached that conclusion based on, among other things, review of a website2 maintained by a former U.S. Attorney for the Southern District of New York and an op-ed published by that former U.S. Attorney.3

6. In connection with that determination and directive, the Acting Deputy Attorney General also concluded that continuing these proceedings would interfere with the defendant’s ability to govern in New York City, which poses unacceptable threats to public safety, national security, and related federal immigration initiatives and policies. See, e.g., Executive Order 14159, 90 Fed. Reg. 8443; Executive Order 14165, 90 Fed. Reg. 8467. The Acting Deputy Attorney General reached that conclusion after learning, among other things, that as a result of these proceedings, Adams has been denied access to sensitive information that the Acting Deputy Attorney General believes is necessary for Adams to govern and to help protect the City.

Public comments from Damian Williams that barely mention Adams create an appearance of impropriety, Bove claims, and the prosecution would interfere with Adams’ ability to govern New York, which Bove suggests (by citation to two of Trump’s immigration crackdown Executive Orders) consists primarily in chasing migrants.

Again, the other letters are not formally before Ho (yet). But Ho has presumably read Hagen Scotten’s take on these two excuses, which labels the first as a pretext and the second as coercion.

In short, the first justification for the motion—that Damian Williams’s role in the case somehow tainted a valid indictment supported by ample evidence, and pursued under four different U.S. attorneys is so weak as to be transparently pretextual. The second justification is worse. No system of ordered liberty can allow the Government to use the carrot of dismissing charges, or the stick of threatening to bring them again, to induce an elected official to support its policy objectives.

Mind you, Bove has invented something in his immigration excuse — that “Adams has been denied access to sensitive information that the Acting Deputy Attorney General believes is necessary.” He actually ordered Sassoon to, “take all steps within your power to cause Mayor Adams’ security clearances to be restored,” in his first letter (which, again, is not formally before Ho). He complained, again, that “Mayor Adams has been denied a security clearance that limits his access to details of national security issues in the City he was elected to govern and protect” in his response.

It’s transparent bullshit. While it may be the case that the Biden Administration had limited sharing of classified information with Adams after his indictment for allegedly taking undeclared gifts from a foreign government [!!!], that’s entirely the prerogative of the President, as Trump has made clear with his hasty grant of security clearance to people manifestly unsuited and his festival of security clearance removals since, first 51 spooks, then Joe Biden himself, and then Tish James and Alvin Bragg, among others. Pretty nutty that Bove says that Eric Adams can’t be prosecuted because it means he can’t see sensitive information when Trump has arbitrarily withheld that very same sensitive information from New York’s Attorney General and the District Attorney, huh?

It’s another pretext.

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.

One additional filing bears mention. On January 18, 2025, Mayor Adams submitted a letter accusing the former U.S. Attorney for the Southern District of New York of violating Local Criminal Rule 23.1 through statements made in an op-ed published on January 16 and on his “new website.” See Letter, Jan. 18, 2025, ECF No. 99 (“Jan. 18 Letter”). The Mayor states that this evidence “should be considered by the Court when ruling on Mayor Adams’s Renewed Motion for an Evidentiary Hearing and for Sanctions Including Dismissal.” Id. at 3. Having reviewed the submission and the evidence referenced within it, the Court concludes that it does not change the Court’s analysis. Neither Mr. Williams’s op-ed itself nor the media it incorporates by reference so much as allude to the grand jury proceedings that led to Mayor Adams’s indictment, let alone disclose protected information from those proceedings. Rule 6(e) is not implicated by the materials, and they do not substantiate Mayor Adams’s claim that the Government has disclosed grand jury information in violation of the Rule.5

5 Although Mayor Adams does not request relief under Local Rule 23.1, the Court notes that, after carefully reviewing Mr. Williams’s op-ed, the op-ed does not contain any statements that run afoul of the Rule’s prohibitions. In the op-ed, Mr. Williams provides hyperlinks to several prosecutions brought during his tenure as U.S. Attorney, including those of federal and state elected officials, but none concern Mayor Adams. In fact, the majority of the statements in the oped that Mayor Adams claims are problematic concern New York State rather than New York City politics. For example, Mayor Adams highlights Mr. Williams’s statements that “[t]he ability to raise obscene sums of money for a campaign is precisely the wrong bottleneck to elected office,” and that “[i]t reeks of pay-to-play corruption and is offensive to most New Yorkers . . . ” Jan. 18 Letter at 2 (quoting Williams’s op-ed). But those sentences are found in a paragraph lamenting the ability of candidates “to raise money from individuals or entities with business before the state,” opining that “[t]he state’s new matching funds program is woefully inadequate,” and arguing in favor of “a truly transformative public financing system for state elections. . . ” Id. (emphases added). They do not appear to be directed at New York City politics generally or at this case specifically.

There is one sentence in the op-ed stating that “[t]he public reporting alone paints a picture” that “America’s most vital city is being led with a broken ethical compass,” id. at 1, which could plausibly be read to be a reference to Mayor Adams (among others). This particular statement, however, “do[es] not cross the line drawn by [Local] Rule 23.1 in the sense that [it] do[es] not, by [itself], constitute opinions as to the Defendant[’s] guilt, and [is] not otherwise the type of statement[] proscribed by the rule.” United States v. Smith, 985 F. Supp. 2d 506, 539 (S.D.N.Y. 2013) (citing Local Rule 23.1(d)). Nor does the statement “go[] beyond the public record.” Local Rule 23.1(b). Of course, “[i]t is essential that prosecutors respect both the power of their words and their office, and ensure that their public comments are carefully tailored solely to further valid law enforcement interests and to steer far clear of violating a defendant’s fundamental right to a fair trial.” Id. at 541. Here, the Court finds that Mr. Williams has not violated those duties.

The arrogance! Bove is telling a judge he has to dismiss an indictment, in part, because Bove asserts as true something that Ho has already said is not true!

But Ho will have to, without more, treat Bove’s second excuse — Adams’ need to do his job to keep NYC safe from migrants — with a presumption of regularity.

Unless and until those other letters alleging this is a quid pro quo come before him.

Sassoon’s letter, which I assume Ho has read, did more than rebut Bove’s thin pretexts. It:

She also invoked Judge Ho, twice by function — citing Judge Ho’s treatment of Spiro’s serial claims of leaks and his specific focus on Williams’ actions (linked above) and reviewing how he had granted Adams’ own request with regards to trial timing. Then she invoked Judge Ho by name, predicting that he would do a “searching inquiry” on this case.

The assigned District Judge, the Honorable Dale E. Ho, appears likely to conduct a searching inquiry in this case. Notably, Judge Ho stressed transparency during this case, specifically explaining his strict requirements for non-public filings at the initial conference. (See Dkt. 31 at 48-49). And a rigorous inquiry here would be consistent with precedent and practice in this and other districts.

In support, she cited this admonition from Ho, in response to seeming attempts to communicate directly with chambers last fall and in the process hide public court hearings.

I want to be clear that in the future, if there are requests to change a certain date, or to have a certain date, I should say, you’ll stick to what you request. If you need a change, you’ll file it on ECF, not via email to chambers. I’ll only consider it if you explain why there’s good cause in a single submission for a change in the date. If you don’t, I’ll deny it on that basis alone. I just want to make sure that counsel understands that and see if there are any questions from counsel as to those instructions.

[snip]

THE COURT: One other guideline that I want to hit, which is with respect to the presumption of public access to documents. Now I understand there may be CIPA issues involved in this case and we’ll take those as they come, but I just want to remind counsel that there’s a presumption of public access to judicial documents, and this is obviously a case of significant public interest. Other than what you can, without court approval, file in redacted or sealed form under the local rules, things like personal identifying information, financial account numbers and the like, I expect requests for redaction of documents to be narrowly tapered.

And just to go over the rules here for the procedures, I should say, if it’s necessary to file a sealed or redacted document, you have to file a letter motion seeking to redact or seal that document specifying the reasons for such sealing or redaction and citing authority that those reasons can justify overcoming the presumption of public access and then file their own redacted documents under seal, which will remain temporarily sealed until the Court resolves the motion to redact or seal the documents, and if it’s appropriate, file a redacted version of those documents on the public docket.

So Sassoon cited “the Court” several times to lay out aspects of the record that Bove got wrong, and then she invoked Judge Ho by name, effectively saying, “Hey Judge Ho, remember that you have ordered both parties in this case to make all documents public? You might want to do that here.”

Now, there 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. It may be that Adams will file notice of his consent on Monday (Mike Flynn filed his own notice of consent five days after Bill Barr filed to dismiss the indictment), but Bove had something in writing on Friday.

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. [my emphasis]

And that may be one of the most important details in Sassoon’s letter to Bondi: Bove negotiated the key point of leverage, dismissal without prejudice with the stated expectation that DOJ will revisit things if and when Adams is reelected in November, without the involvement of SDNY.

When Sassoon invited Judge Ho, by name, to use his early admonition about public filings “to conduct a searching inquiry in this case,” she suggested that Bove was skirting that earlier admonition. Dale Ho likely didn’t need Sassoon’s invitation, and doesn’t need to first find a way to adopt this correspondence to the public docket.

Because Bove insanely submitted a request to dismiss the indictment without the most important piece of the paperwork.

Timeline and documents

January 31: Meeting at which someone from SDNY took notes, which were confiscated.

February 3: Date of SDNY memo that, per Bove, denies a quid pro quo.

Monday, February 10: Bove letter to Sassoon (addressed as Acting US Attorney), ordering her to dismiss the case.

Wednesday, February 12: Sassoon letter to Pam Bondi, asking to meet.

Thursday, February 13: Bove letter to Sassoon, firing her.

February 13 or 14: Hagen Scotten resignation letter.

Friday, February 14: Nolle Prosequi letter submitted by Acting Criminal Division Chief Antoinette Bacon and AUSA Edward Sullivan, signed by Bove.

Update: Added the February 3 memo.