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Todd Blanche Fails Effort to Force SDNY AUSAs to Frame Themselves

April 23, 2025/39 Comments/in emptywheel /by emptywheel

Most reports on the resignation letter from the last three AUSAs on the Eric Adams case focus, justifiably, on its substance. After stating that Deputy Attorney General Todd Blanche would only let them return from paid leave if they confessed wrong-doing they didn’t commit, Celia Cohen, Andrew Rohrbach, and Derek Wikstrom instead resigned.

The Department placed each of us on administrative leave ostensibly to review our, and the Southern District of New York U.S. Attorney’s Office’s, handling of the Adams case. It is now clear that one of the preconditions you have placed on our returning to the Office is that we must express regret and admit some wrongdoing by the Office in connection with the refusal to move to dismiss the case. We will not confess wrongdoing when there was none.

[snip]

Serving in the Southern District of New York has been an honor. There is no greater privilege than to work for an institution whose mandate is to do the right thing, the right way, for the right reasons. We will not abandon this principle to keep our jobs. We resign.

But I’m just as interested in the date: Tuesday’s date, April 22.

The same day that Jay Clayton was apparently installed at SDNY, over Chuck Schumer’s attempt to hold his nomination.

Trump has, in general, conducted his purges before bringing in new leaders, even if (as with Kash Patel) the incoming leader was secretly part of the purge. In any case, the attack on the Adams

prosecutors has been going on for months. Emil Bove first put Wikstrom on paid leave, along with Hagan Scotten, on February 13, over two months ago. He first attempted to smear prosecutors with quotations stripped of context on March 7, by which point he had already rifled through their communications.

In between, Judge Dale Ho pushed back on DOJ’s claims any of these prosecutors engaged in misconduct.

Finally, the parties raise related issues in their briefs that do not appear in DOJ’s Rule 48(a) Motion. For reasons explained below, a court cannot properly grant a Rule 48(a) motion on the basis of rationales that were not raised in the motion. But even considering these additional points on the merits, the Court finds them either inapposite or unsupported by the record. For example, DOJ attaches various exhibits to its brief consisting of communications involving the former prosecution team and asserts that they show “troubling conduct” at USAO-SDNY. DOJ Br. at 1. But these communications were not public until DOJ sought to rely on them; as a matter of logic, they could not have affected “appearances” in this case. Moreover, the notion that DOJ sought dismissal because of improper conduct by the USAO-SDNY prosecution team is belied by the February 10 Decisional Memo itself, which makes clear that DOJ, in reaching its decision, “in no way call[ed] into question the integrity and efforts of the line prosecutors responsible for the case.” February 10 Decisional Memo at 1. At any rate, the Court has reviewed these communications carefully and finds that they do not show any improper motives or violations of ethics canons or the Justice Manual by the USAO-SDNY prosecution team or by former U.S. Attorney Sassoon.49

49 The Justice Department’s Principles of Federal Prosecution state, in relevant part, that “the attorney for the government should commence or recommend federal prosecution if he/she believes that the person’s conduct constitutes a federal offense, and that the admissible evidence will probably be sufficient to obtain and sustain a conviction, unless (1) the prosecution would serve no substantial federal interest; (2) the person is subject to effective prosecution in another jurisdiction; or (3) there exists an adequate non-criminal alternative to prosecution.” U.S. Dep’t of Just., Just. Manual § 9-27.220 (2023). There is nothing in the USAO-SDNY communications indicating a violation of these principles. For example, one communication indicates that a friend of AUSA Scotten believed that he would make a good federal judge. See ECF No. 175-4. The Court has reviewed this communication and finds that it shows nothing noteworthy, only that AUSA Scotten was focused on his current job “first,” rather than on any possible future opportunities. Id. Another communication—an email circulating a draft letter to the Court—refers to the Williams op-ed as a “scandal,” ECF No. 175-3, but the use of that informal shorthand in an email does not suggest that any of the individual AUSAs on the case, or the U.S. Attorney at the time, had any inappropriate motives or otherwise violated Justice Department policy or guidelines. [my emphasis]

Ho thus foiled DOJ’s effort to conduct a Twitter Files attack on these prosecutors, to invent scandal among private messages.

And, apparently, Todd Blanche was left demanding that the prosecutors implicate themselves.

There’s nothing good about a dozen prosecutors ousted from DOJ over Bove’s effort to cover up his own quid pro quo with ginned up claims of wrong-doing. There’s nothing good about Blanche’s overt effort to weaponize DOJ in the name of fighting it.

But amid silence about other prosecutors ousted on similar terms, this seems to mark a clear failure. Thus far, the ethics of the prosecutors have thwarted Bove and Blanche’s efforts to recruit them in their own corruption.

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Judge Dale Ho Upends Emil Bove’s Weaponization

April 3, 2025/23 Comments/in emptywheel /by emptywheel

As predicted, yesterday Judge Dale Ho dismissed the indictment against Eric Adams with prejudice, meaning the Trump Administration can’t charge Adams anew if he fails to do their bidding on immigration.

In his opinion explaining his decision, Ho engaged in a great deal of legal analysis, but ultimately it came down to this: even though DOJ’s explanations for the request to dismiss the indictment don’t hold up, because there’s no way to continue prosecuting Adams, Ho would end up having to dismiss the case in 70 days anyway on Speedy Trial grounds.

Thus, whatever teeth the public interest inquiry might have under Rule 48(a), denying dismissal as contrary to the public interest would be futile as a practical matter where, as here, the Motion was filed by DOJ itself. See id.; Nederlandsche, 453 F. Supp. at 463. While the Court could deny the Motion, allow seventy days to pass, and then dismiss the case on Speedy Trial Act grounds, it is hard to see what good that would accomplish.

Ho finds, for a bunch of reasons (including precisely the appearance of impropriety that DOJ claimed motivated their abandonment of the prosecution) to dismiss with prejudice, so the case is not hanging over Adams’ head. And so, having decided to dismiss with prejudice, Ho does so now rather than later (though he doesn’t say it, he does so with enough time that NYC voters can hold Adams accountable for this stinky deal).

[G]iven that seventy days from the date of this Opinion would take us uncomfortably close to the June 24, 2025 New York City mayoral primary election,60 the Court concludes that, if dismissal is inevitable, the public interest weighs in favor of its happening now rather than later.

In the process, Ho dismisses all the arguments DOJ made to justify the request.

First, he dismisses one of two reasons given for the dismissal — the appearance of impropriety — as a pretext. Ho cites his own opinion rejecting the claim when Mayor Adams’ team made it earlier.

45 To the extent that Mayor Adams argues that he has been prejudiced from extrajudicial statements about the case, see Adams Br. at 19-20, the Court has rejected two prior motions under Rule 6 raising these issues. See First Rule 6 Order; Second Rule 6 Order. Moreover, the Government itself has, until the filing of the Rule 48(a) Motion, denied that Mayor Adams has suffered any prejudice from any pretrial publicity throughout this litigation. For example, in response to Mayor Adams’s First Rule 6 Motion, the Government observed that there was no evidence that news articles about the investigation into his alleged illegal activity “put pressure on senior Justice Department officials to approve the indictment,” induced any grand jury witness to testify, or affected the grand jury’s decision to indict the Mayor. Gov’t First Sanctions Opp’n at 21-23. The Government also argued that Mayor Adams “ha[d] not established reason to believe that a future trial jury w[ould] be prejudiced by the news coverage of this case.” Id. at 23. The existence of such prejudice is typically uncovered through voir dire, which obviously has not happened here (nor will it). See United States v. Zichettello, 208 F.3d 72, 106 (2d Cir. 2000) (“When a trial court determines that media coverage has the potential for unfair prejudice, it is obligated to canvass the jury to find out if they have learned of the potentially prejudicial publicity and, if necessary, voir dire the jury to ascertain how much they know of the distracting publicity and what effect, if any, it has had on that juror’s ability to decide the case fairly.”).

But Ho also repeatedly adopts the word “pretext,” the one Hagan Scotten used to describe that excuse in his resignation letter.

As to Emil Bove’s claim that the indictment was hindering Adams’ ability to govern, Ho uses the public appearance Adams made to show that he was able to help the Administration in spite of the indictment.

The dispute here, however, seems to be more about how to interpret the facts than what the facts are. In a February 3, 2025 letter to DOJ (which they filed on the docket without prompting from the Court), Mayor Adams’s counsel asserted that the Mayor’s “independent abilities to exercise his powers have also been complicated by his indictment.” See Letter from Adams’s Counsel to DOJ. Specifically, they noted that [the Mayor’s] powers allow him to take actions such as preventing the Office of the Corporation Counsel from litigating challenges to immigration enforcement, preventing appointed city employees from taking public stances against enforcement efforts, reopening the ICE office on Rikers Island, and directing the NYPD to supply manpower to assist federal immigration agents. Id. Mayor Adams’s counsel did not explain how the Mayor’s exercise of these powers had been “complicated” by this case. Instead, they provided a list of discrete policy options that the Mayor could choose to exercise. And then, three days after DOJ issued the February 10 Decisional Memo directing SDNY to move to dismiss the Indictment (and one day before the Rule 48(a) Motion was ultimately filed), Mayor Adams decided to take one of these official acts, announcing that “he would issue an executive order allowing federal immigration authorities into the Rikers Island jail complex.” Br. of Amicus Curiae State Democracy Defenders Fund et al. at 5, ECF No. 152-2; see also ECF No. 150-4 at 152 (news article stating that “New York City Mayor Eric Adams said Thursday he will use his executive powers to allow federal immigration authorities back into the city’s sprawling Rikers Island jail complex, marking a substantial shift in the city’s sanctuary policies that prevent it from enforcing immigration law”). It seems that the Indictment was not, in fact, a barrier to that particular policy decision.

From that, Ho laid out how this creates the appearance of a quid pro quo.

The parties deny that Mayor Adams’s Rikers Island decision—which appears to be contrary to New York City Code53—reflects a quid pro quo. The record contains no contemporaneous notes of what was actually said during the January 31 meeting at DOJ,54 but counsel for Mayor Adams have represented in a letter to the Court that “we never said or suggested to anyone . . . that Mayor Adams would do X in exchange for Y, and no one said or suggested to us that they would do Y in exchange for X,” adding: “We are prepared to confirm these points under oath in sworn declarations.” See Def.’s Feb. 18, 2025 Letter at 2. The Court appreciates counsel’s willingness to supplement the record and facilitate further inquiry by the Court beyond the materials that they have affirmatively submitted without solicitation. E.g., Letter from Adams’s Counsel to DOJ.

But the Court finds that additional factual investigation—even if permissible—is unnecessary at this time. Whether anyone expressly incanted the precise words that they “would do X in exchange for Y” is not dispositive. As the Second Circuit has explained, “[a]n explicit quid pro quo . . . need not be expressly stated but may be inferred from the official’s and the payor’s words and actions.” United States v. Benjamin, 95 F.4th 60, 67 (2d Cir. 2024), cert. denied,

No. 24-142, 2024 WL 5112284 (Dec. 16, 2024); see also Benjamin, 95 F.4th at 68 (noting that while a “quid pro quo must be clear and unambiguous, there is no reason why it cannot be implied from the official’s and the payor’s words and actions.”); cf. Evans v. United States, 504 U.S. 255, 274 (1992) (Kennedy, J., concurring in part and concurring in the judgment) (“The official and the payor need not state the quid pro quo in express terms, for otherwise the law’s effect could be frustrated by knowing winks and nods.”). The Court need not and does not make any conclusive findings as to whether there was an explicit bargain here.55 It is sufficient to note that the facts, as put into the record by Mayor Adams’s legal team, do not support the notion that continuing this case will impede the Mayor’s ongoing immigration enforcement efforts—they instead suggest that dismissal of the case will facilitate future efforts by the Mayor, in alignment with the administration’s policy preferences

53 N.Y.C. Admin. Code § 9-131(h)(2) (“Federal immigration authorities shall not be permitted to maintain an office or quarters on land over which the department exercises jurisdiction, for the purpose of investigating possible violations of civil immigration law; provided, however, that the mayor may, by executive order, authorize federal immigration authorities to maintain an office or quarters on such land for purposes unrelated to the enforcement of civil immigration laws.”).

54 As noted above, the Sassoon Letter states one of her colleagues took contemporaneous notes but that those notes were confiscated at the end of the meeting. Sassoon Letter at 3 n.1. The February 13 Bove Letter in response references these events as well. See Feb. 13 Bove Letter at 3 n.3.

55 If such factual findings were necessary to the Court’s decision, additional evidentiary proceedings could then be appropriate.

The footnotes here are — as footnotes usually are — the sweet spot. Ho notes that Adams agreed not just to cooperate with Trump’s immigration enforcement, but to do so in defiance of New York City law.

And then he effectively says, if you don’t like my judgement that there is at least the appearance of a quid pro quo, we can reopen the evidentiary proceedings, in part by examining the notes that you seized from an AUSA on the case.

Judge Ho dismisses much of Bove’s effort to impugn Danielle Sassoon and Scotten by pointing out that it is irrelevant to the issue before him. DOJ said they were only relying on the two reasons to dismiss the indictment: the pretextual claim of appearance of impropriety that Ho had already rejected, and the infringement on Adams’ ability to do his work that Ho described as a quid pro quo. So they can’t, after the fact, attempt to manufacture real bias by posting communications from the prosecutors out of context.

In any case, Ho was unimpressed with Bove’s attempt to smear the prosecutors, finding it unexceptional, for example, that one of Scotten’s friends thought he would make a good judge.

Finally, the parties raise related issues in their briefs that do not appear in DOJ’s Rule 48(a) Motion. For reasons explained below, a court cannot properly grant a Rule 48(a) motion on the basis of rationales that were not raised in the motion. But even considering these additional points on the merits, the Court finds them either inapposite or unsupported by the record. For example, DOJ attaches various exhibits to its brief consisting of communications involving the former prosecution team and asserts that they show “troubling conduct” at USAO-SDNY. DOJ Br. at 1. But these communications were not public until DOJ sought to rely on them; as a matter of logic, they could not have affected “appearances” in this case. Moreover, the notion that DOJ sought dismissal because of improper conduct by the USAO-SDNY prosecution team is belied by the February 10 Decisional Memo itself, which makes clear that DOJ, in reaching its decision, “in no way call[ed] into question the integrity and efforts of the line prosecutors responsible for the case.” February 10 Decisional Memo at 1. At any rate, the Court has reviewed these communications carefully and finds that they do not show any improper motives or violations of ethics canons or the Justice Manual by the USAO-SDNY prosecution team or by former U.S. Attorney Sassoon.49

49 The Justice Department’s Principles of Federal Prosecution state, in relevant part, that “the attorney for the government should commence or recommend federal prosecution if he/she believes that the person’s conduct constitutes a federal offense, and that the admissible evidence will probably be sufficient to obtain and sustain a conviction, unless (1) the prosecution would serve no substantial federal interest; (2) the person is subject to effective prosecution in another jurisdiction; or (3) there exists an adequate non-criminal alternative to prosecution.” U.S. Dep’t of Just., Just. Manual § 9-27.220 (2023). There is nothing in the USAO-SDNY communications indicating a violation of these principles. For example, one communication indicates that a friend of AUSA Scotten believed that he would make a good federal judge. See ECF No. 175-4. The Court has reviewed this communication and finds that it shows nothing noteworthy, only that AUSA Scotten was focused on his current job “first,” rather than on any possible future opportunities. Id. Another communication—an email circulating a draft letter to the Court—refers to the Williams op-ed as a “scandal,” ECF No. 175-3, but the use of that informal shorthand in an email does not suggest that any of the individual AUSAs on the case, or the U.S. Attorney at the time, had any inappropriate motives or otherwise violated Justice Department policy or guidelines for purposes of its Rule 48(a) Motion, disclaimed any reliance on the suggestion of improper purposes in this prosecution.

Plus, there’s no way these could substantiate the appearance of impropriety claim justify dismissing the case, because Bove only made them public after the fact.

Similarly, Ho rejected Bove’s belated claims that there was something problematic with the case itself — and in a footnote, insinuates that Pam Bondi and Chad Mizelle were the ones engaged in misconduct by sharing their opinions about the strength of the case in violation of local rules.

The Rule 48(a) Motion does not allude to the possibility of other reasons for dismissal beyond the two set forth on its face. See Rule 48(a) Mot. ¶¶ 5-6. To the contrary, the Motion suggests that there are none. See id. at 3 (seeking dismissal “[b]ased on the foregoing” reasons). At the February 19 conference, DOJ confirmed that there were no other bases asserted in the Motion. See Feb. 19 Conf. Tr. at 22:18-22 (confirming that the Court’s “understanding that the motion contains no statement about the government’s views regarding the strength of the case in terms of the facts or the legal theory” is “correct”); id. at 22:18-25 (stating that “[t]here are two” bases for the Motion, neither of which concerned the merits). While counsel for DOJ stated “I do have other concerns” about the case, he disclaimed reliance on them for purposes of the Rule 48(a) Motion, explaining that the Government is “not asking the court to rely on any” reasons for dismissal beyond what is stated in the Motion itself. Id. at 22:5-13. And DOJ’s February 10 Decisional Memo is unequivocal in this regard, stating that “[t]he Justice Department has reached this conclusion without assessing the strength of the evidence or the legal theories on which the case is based, which are issues on which we defer to the U.S. Attorney’s Office at this time.” Feb. 10 Decisional Memo at 1 (emphasis added). It was only in response to this Court’s Order requesting further briefing on several questions, none of which concerned the reasons for the Motion, that DOJ raised this additional ground for dismissal.57

57 To be sure, in his February 13 letter to U.S. Attorney Sassoon, Acting DAG Bove stated that he has “many other concerns about this case,” which he described as turning on “factual and legal theories that are, at best, extremely aggressive.” Feb. 13 Letter at 7. Mayor Adams also points to a statement by the Attorney General that the case was “incredibly weak,” and has previously referenced similar statements to the same effect by the DOJ Chief of Staff. See Adams Br. at 6; Def.’s Feb. 21, 2025 Letter at 1. Assuming these concerns were well founded, they still do not contradict the February 10 Decisional Memo’s statement that DOJ reached its determination regarding dismissal without assessing the strength of the case. Separately, the Court notes that the statements referenced by Mayor Adams appear to violate Local Criminal Rule 23.1, which prohibits extrajudicial statements regarding an “opinion . . . in connection with pending or imminent criminal litigation . . . if there is a substantial likelihood that the dissemination will interfere with a fair trial or otherwise prejudice the due administration of justice.” S.D.N.Y. & E.D.N.Y. L. Crim. R. 23.1(a). The Rule provides that “[a]ny opinion as to . . . the merits of the case” “presumptively involve[s] a substantial likelihood that their public dissemination will interfere with a fair trial or otherwise prejudice the due administration of justice within the meaning of this rule.” Id. at 23.1(d)(7). [my emphasis]

I noted the problems with Mizelle and Bondi’s interventions at the time.

You can’t retcon the reasons for dismissing the case, Judge Ho says, because it would undermine the political accountability that is one purpose for judicial involvement in a Rule 48(a) motion.

None of this is meant to suggest that it would be wholly impermissible for the government to have, in addition to valid reasons that are expressly stated, other unstated reasons for dropping a prosecution. But if the reasons actually articulated in a Rule 48(a) motion itself are insufficient, and dismissal can be justified only by resort to other grounds, then the omission of those other reasons misleads the court and the public, undermining political accountability. Under such circumstances, it would flout Rule 48(a)’s requirement of leave of court to grant a motion based on belatedly offered rationales. See Ammidown, 497 F.2d at 620 (“Rule 48(a)’s requirement of judicial leave . . . contemplates exposure of the reasons for dismissal.”). Here, DOJ has affirmatively asked the Court to rely on the reasons in its Rule 48(a) Motion and has argued that these reasons are a sufficient basis for granting the Motion. See Feb. 19 Conf. Tr. at 22:5-17. The Court therefore cannot permit DOJ to rely on a post hoc rationale not stated in the Motion itself. “[W]hen so much is at stake, . . . the Government should turn square corners in dealing with the people.” Regents, 140 S. Ct. at 1909. For these reasons, the Court cannot consider DOJ’s belated merits-based arguments in adjudicating this motion. [my emphasis]

In the last pages of the opinion Ho does a number of things that may have application outside of this case. He adopts Sassoon’s point that the comparison of the Adams case to the Viktor Bout case is inapt. More importantly, the Bout case was a quid pro quo. It doesn’t help Bove claim this wasn’t a quid pro quo, it does the opposite.

First, it is odd that DOJ would analogize its decision to dismiss Mayor Adams’s indictment—which it vehemently denies is a quid pro quo—to a prisoner exchange that was explicitly a quid pro quo. Moreover, it is inapt to compare an exchange negotiated between two sovereign nations, neither of which is beholden to the laws of the other, to the Government’s decision to dismiss the indictment of an elected public official who is subject to local, state, and federal laws.

The unprecedented nature of DOJ’s rationale is particularly concerning given its view that its decision is “virtually unreviewable” because it “invocates concerns about executive power that go right to the core of Article II of the Constitution.” Feb. 19 Conf. Tr. at 23:20-24. If that is correct, DOJ’s position has rather broad implications, to put it mildly. For instance, DOJ endorsed the view that the government can apply this rationale to virtually any public official with immigration-related responsibilities—ranging from a local police commissioner to the governor of a border state—and determine that they are essentially immune from criminal liability. See id. at 32:22-34:8.

Where I’m most intrigued, Ho likens what DOJ is doing here — using the threat of prosecution to coerce states — to Congressional attempts to do the same.

Threatening federal indictment to compel compliance with federal regulatory objectives by a state or local official also raises significant federalism concerns. It is well established that “the Federal Government may not compel the States to implement, by legislation or executive action, federal regulatory programs.” Printz v. United States, 521 U.S. 898, 925 (1997). Although this prohibition has typically been applied to acts of Congress, the principles that underpin it—namely, federalism and political accountability—would similarly preclude an attempt by the federal executive branch to coerce a state or local official into implementing federal policy objectives. 58

See U.S. Dep’t of Just., Just. Manual § 9-16.110 (2020) (cautioning that “[p]lea bargains with defendants who are elected public officers can present issues of federalism . . . when they require the public officer defendant to take action that affects his or her tenure in office”). Here, the fact that, after DOJ made the decision to seek dismissal of his case, Mayor Adams decided to issue an executive order in alignment with current “federal immigration initiatives and policies,” Rule 48(a) Mot. ¶ 6, but in apparent conflict with New York City law, see N.Y.C. Admin. Code § 9-131(h)(2), is troubling to say the least. It suggests that the federal government is using the pendency of a federal indictment to override the City’s laws in favor of its own policy goals.

58 That prohibition applies even where state or local officials consent to federal compulsion, because “[t]he interests of public officials . . . may not coincide with the Constitution’s intergovernmental allocation of authority.” New York v. United States, 505 U.S. 144, 183 (1992). “The Constitution does not protect the sovereignty of States for the benefit of the States . . . as abstract political entities, or even for the benefit of the public officials governing the States.” Id.

But this is what Trump is doing left and right: Threatening states, cities, and private entities to try to get compliance with Trump’s orders. And while federalism would only apply this holding to government entities, Trump has already retaliated against New York’s other elected leaders for personal grievances. Pam Bondi has even threatened criminal prosecution in the immigration context.

So don’t be surprised if you see this opinion cited down the road.

Emil Bove attempted to force through his corrupt deal quietly, with pretextual excuses for doing so. When that failed, he turned to retaliation against at least Sassoon and Scotten. Whatever else this opinion does — no matter how unsatisfying it is that Adams will escape accountability, and it is — Ho used this opinion to lay out judicial record that Bove’s claims are bullshit.

Ho can’t stop Bove’s corrupt deal. But this opinion may forestall follow-on weaponization of this case.

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Emil Bove Calls Resignation in Face of Unethical Order “Misconduct”

March 8, 2025/38 Comments/in emptywheel /by emptywheel

Unsurprisingly, in his amicus filing, Paul Clement strongly recommended that Judge Dale Ho should dismiss the Eric Adams prosecution with prejudice. The most remarkable thing about Clement’s memorandum, as first noted by Josh Gerstein, is that Clement did not mention the Mike Flynn case, even while making claims directly undermined by it. (Adams’ own filing mentions Neomi Rao’s dissent in Flynn, and Emil Bove invoked it inaptly to say that because the amicus in Flynn did not seek discovery, it means no amicus would need to.)

Bove’s submission, signed as well by newly-confirmed Todd Blanche, is surprising, but not just for its inapt citation of Flynn.

Filed in the wake of multiple questions about his own ethical misconduct, Bove largely shifts a key premise of his own motion to dismiss, that it should be dismissed because of an appearance of impropriety. He largely replaces that justification, one of two made for dismissing the Adams case, to weaponization alone.

The first sentence of the section addresses his excuses for dismissing the case cites a paragraph that mentions only appearance of impropriety, then the transcript where he mentions weaponization but supports it by claiming an appearance of impropriety.

Dismissal is required, on consent, based on the Department’s conclusion that this prosecution reflects an improper weaponization of the criminal justice system, which has given rise to “appearances of impropriety and risks of interference with the 2025 elections in New York City.” Mot. ¶ 5; see also 2/19/25 Tr. 23.

But the balance of the passage relies entirely on his claim of weaponization, citing to Trump’s Executive Order making false claims that Biden politicized DOJ, and eventually citing an appellate decision in the Blagojevich case that threw out those quid pro quos that involved trading of official positions, but not those involving personal benefit (seemingly suggesting that Eric Adams would get no personal benefit from dismissal).

In this case, the Department has exercised the capacious prosecutorial discretion that supports the Motion pursuant to the anti-weaponization policy articulated by President Trump on his first day in office. Specifically, Executive Order 14147, entitled Ending the Weaponization of the Federal Government, sets forth the following policy: “It is the policy of the United States to identify and take appropriate action to correct past misconduct by the Federal Government related to the weaponization of law enforcement . . . .” 90 Fed. Reg. 8235. The express “purpose” of the policy is to “ensure accountability for the previous administration’s weaponization of the Federal Government against the American people,” which included conduct “oriented more toward inflicting political pain than toward pursuing actual justice or legitimate governmental objectives.” Id.

It cannot be denied that President Trump’s anti-weaponization policy is in the public interest as an important reform in response to recent abuses of the criminal justice system. The purpose of the policy, like the Petite policy, “is to protect the individual from any unfairness.” Rinaldi, 434 U.S. at 31. “The defendant, therefore, should receive the benefit of the policy whenever its application is urged by the Government.” Id. Here, for the reasons set forth in the Motion and at the February 19, 2025 hearing, that means the pending charges must be dismissed.

[snip]

As a legal matter, the Department’s conclusion that dismissal would serve the public good by deterring weaponization, and promoting Executive Branch national security and immigration objectives, is entirely proper. Every action that a diligent public servant takes should be designed to advance the public good, which is what the Motion seeks to achieve. If taking such steps were treated as the equivalent of a personal gift or bribe, whether under the ethics rules or bribery laws, government would literally grind to a halt. That is why “a proposal to trade one public act for another, a form of logrolling, is fundamentally unlike the swap of an official act for a private payment.” United States v. Blagojevich, 794 F.3d 729, 734 (7th Cir. 2015).

Remember: Judge Ho ruled that the publicity around the case did not violate local rules, and Adams never even claimed selective prosecution. This is Bove saying he knows better and Judge Ho has no say in the matter.

Having thus claimed that Trump’s own declaration that prosecutions against him were unfair can, in turn, taint entirely different prosecutions, his defense attorney then tries to flip his own alleged unethical conduct. Both in the introduction and in a long follow-up section (together making up about 8 pages of 18), Bove spins Danielle Sassoon and Hagan Scotten’s refusal to do something they viewed to be unethical as itself misconduct.

He does so in two ways. First, and most alarmingly, he suggests that resigning rather than taking an action they deemed unethical amounted to misconduct. Consider the logic of these two paragraphs (Bragg v. Jordan is the Second Circuit opinion holding that Mark Pomerantz had to respond to a Jim Jordan subpoena, sustaining Bove’s paranoia and Trump’s conspiracy theories about him):

The decisions by U.S. Attorney-2 and AUSA-1 to resign, rather than carry out their obligations under the Department’s chain of command, are not a basis to question the Motion. Each U.S. Attorney’s authority is derivate of the Executive Power that the President has delegated to the Attorney General. See 28 U.S.C. §§ 503, 509, 515. So too is the residual power of AUSAs, who are removable by the Attorney General. See 28 U.S.C. § 542. The Attorney General explained on February 5, 2025 that “it undermines the constitutional order and deprives the President of the benefit of his lawyers” when the Department’s attorneys “refuse to advance good faith arguments . . . .”3 SDNY’s prosecution team and Executive Staff did just that, preferring “political theatre” [sic] over their obligations to the Constitution and the public. Bragg v. Jordan, 669 F. Supp. 3d 257, 275 (S.D.N.Y. 2023).

SDNY has taken a markedly different tack in other cases by conceding that the office is bound by the Department’s senior leadership. In Blaszczak, SDNY felt “constrained” to “confess error at the direction of the Solicitor General’s Office” and to ask the Second Circuit to “set aside” trial convictions on several fraud counts. ECF No. 453 at 8, No. 18-2811 (2d Cir. Apr. 2, 2021); see also id. at 2 (noting that SDNY was “constrained to follow” the Department’s position); id. at 12 (“[T]he Government is constrained to concede that the § 641 object of each conspiracy was legally invalid. . . .”). In Paracha, an AUSA told the court that, because the dismissal motion had been “approved at the highest levels of the Department of Justice,” “w[e] do not have authority to make any changes to that document.” ECF No. 197 at 7 (emphasis added), No. 03 Cr. 1197 (S.D.N.Y. Dec. 20, 2019). Here, too, the SDNY prosecution team lacked authority to countermand a decision authorized by the Attorney General. Their misconduct is not a basis to extend this litigation, much less deny the Motion. [my emphasis]

3 https://www.justice.gov/ag/media/1388521/dl?inline.

In this passage, Bove presents what is the proper ethical decision — to end a relationship with a client if they ask you to do something you cannot ethically do — as instead misconduct (and he calls it misconduct even though, as he says elsewhere, Sassoon and Scotten are “the subjects of an ongoing investigation at the Department,” making it clear, on the same day the head of Office of Professional Responsibility was sacked, that he has prejudged the affair).

He does so while invoking the memo Pam Bondi issued last month, demanding that all lawyers of the Department be willing to “vigorously defend[] presidential policies and actions against legal challenges on behalf of the United States.” The consequence Bondi lays out for failing to zealously (a word repeated four times) defend Trump’s views is discipline or termination.

It is therefore the policy of the Department of Justice that any attorney who because of their personal political views or judgments declines to sign a brief or appear in court, refuses to advance good-faith arguments on behalf of the Administration, or otherwise delays or impedes the Department’s mission will be subject to discipline and potentially termination, consistent with applicable law.

But that’s not what happened here: Sassoon and Scotten resigned. (Indeed, Bove formally treated Sassoon’s offer, made to AG Bondi, to resign as such, rather than firing her while she remained an employee, which he could have done).

In other words, Bove is robbing Sassoon and Scotten of the ability to resign to avoid an unethical act. He’s saying the mere act of doing so — the act of making the ethically correct decision as a lawyer — amounts to misconduct.

And from there, he document dumps a bunch of communications Sassoon, Scotten, and some other AUSAs on the case sent, a veritable Twitter Files dump in a legal filing, clearly misrepresenting the context of at least some of them. (I’ve put the references to all eight Exhibits below.)

For example, Bove quotes from a text exchange three days after the election in which someone asks the very conservative Hagan Scotten if he’s going to go after a judgeship now that a Republican won. Scotten replies, “Got to convict Adams before I can think about anything else.” Bove quotes this three times!! But it appears to say precisely the opposite of what Bove implies — he uses it to slam Scotten (along with Sassoon) as “aggressive and careerist.” But instead it shows that Scotten was focused on what he was doing; he wasn’t rushing from what Bove claims is a dogshit prosecution to find a lifetime promotion. Plus, Bove claims that Scotten’s text, “illustrates why [Scotten] was later interested in using public filings to send messages to President Trump,” which makes no sense at all; it was already clear by the election that Trump was sucking up to Adams. If Scotten wanted to suck up to Trump, he would have ditched the prosecution ASAP, possibly even (as Bove himself did) rush to represent Trump in two criminal cases for attacking the country, in hopes of political gain.

Similarly, Bove treats a draft of the letter Sassoon ultimately sent to Pam Bondi on February 12 as a big gotcha, pretending that there’s no difference between “having the authority” to dismiss charges with “having a valid basis to do so.”

Four of the documents Bove cites (Exhibit B, Exhibit C, Exhibit G, and Exhibit H) discuss the drafting of this court filing, which was in turn a response to this inflammatory filing from Adams’ attorneys. The comments all seem to react to the headache Damian Williams had caused by promoting himself and writing an oped opposing corruption — though Adams’ letter make ridiculous claims that Williams was trying to get into the Mayoral race with just months to spare. Adams’ letter effectively says that Williams’ anti-corruption stance as US Attorney, one that targeted both overt Democratic donor Sam Bankman-Fried and Robert Menendez, was partisan. None of the comments supports Adams’ point — that there was some impropriety with the prosecution or prejudice for Adams before a jury. Nor do they conflict with Judge Ho’s opinion on Damian Williams’ op-ed, which is that it was a stretch to suggest it targeted Adams at all and certainly didn’t violate local rules.

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.”

There’s even a clear concern not to dictate anything to the incoming Main Justice team nor to piss off Trump, precisely the kind of deference Bove is demanding.

Plus, Bove omitted something from Sassoon’s letter to Bondi. Williams had a minimal role in the case.

As Mr. Bove’s memo acknowledges, and as he stated in our meeting of January 31, 2025, the Department has no concerns about the conduct or integrity of the line prosecutors who investigated and charged this case, and it does not question the merits of the case itself. Still, it bears emphasis that I have only known the line prosecutors on this case to act with integrity and in the pursuit of justice, and nothing I have learned since becoming U.S. Attorney has demonstrated otherwise. If anything, I have learned that Mr. Williams’s role in the investigation and oversight of this case was even more minimal than I had assumed. The investigation began before Mr. Williams took office, he did not manage the day-to-day investigation, and the charges in this case were recommended or approved by four experienced career prosecutors, the Chiefs of the SDNY Public Corruption Unit, and career prosecutors at the Public Integrity Section of the Justice Department. Mr. Williams’s decision to ratify their recommendations does not taint the charging decision

Emil Bove went fishing in the prosecutors personal emails (the other two AUSAs on the team were put on paid leave Friday, ensuring they lost access to these communications before Bove filed this), hoping to find corroboration for his false claims about politicization, and came up short. So instead, he simply made up they made Sassoon and Scotten look like careerists, when nothing he submitted supports that at all.

Twitter Files. An attempt to smear two prosecutors for making an ethical decision, precisely the basis of several ethical complaints raised against Bove himself.

Understand, too, Bove is playing a transparent game. Publishing these communications is a privacy violation, little different than the release of the Strzok and Page texts which DOJ subsequently determined was unlawful. Bove as much as concedes the point in his request asking to seal the exhibits.

In the Response, the Department sought to strike an appropriate balance between the public’s right of access, and the privacy interests of the attorneys at issue, by anonymizing the participants to communications. The participants are the subjects of an ongoing investigation at the Department.

[snip]

Even to the extent inferences regarding the identities of certain participants could be drawn based on connections to public reporting, that is not the case for each of the individual participants.

Of course, filing something under seal provides cause for the press to demand to have it unsealed under precisely the same “public right of access.” It won’t be sealed for long. And the only mystery about the identities of AUSAs 2, 3, and 4 is which is which member of the now-suspended prosecution team.

None of this helps Bove’s case. None of this disproves there was a quid pro quo. None of this presents any evidence that Sassoon or Scotten had any question about the ethics of their decision.

All it does is confirm that when Bove says he’s fighting weaponization, he means he’s going to go after anyone who gets in his way of weaponizing DOJ.

Exhibit A: Part of a package of communications Danielle Sassoon attached to an email; Bove claims that all are related to her resignation (it’s not clear they are)

On February 12, 2025, the recently-resigned Acting U.S. Attorney (U.S. Attorney-2) sent herself a draft letter stating that she was “personally disappointed in [her] predecessor’s self-serving actions after his departure. . . .” Ex. A,

[snip]

Attorney-2 sent an email attaching draft materials relating to her anticipated resignation. Ex. A. One of the documents was named “Adams PR,” i.e., press release, which suggests that she was already planning to publicize her resignation. Ex. A, Attachment 1. A another document, styled as a letter to the Attorney General, included the assertion that U.S. Attorney-2 “was personally disappointed in my predecessor’s self-serving actions after his departure, including the creation of a personal website.” Ex. A, Attachment 3. The draft letter also noted, in highlighted text, that “the Attorney General has the authority to order the dismissal of pending charges.” Id. On the day after sending the drafts, U.S. Attorney-2 emailed a letter to the Attorney General that omitted this language and claimed falsely: “The Government Does Not Have a Valid Basis To Seek Dismissal.”

Exhibit B: A discussion about how to respond to Eric Adams’ complaints about Damien Williams’ public comments

prior to making the public claim that only a “coward” or “fool” would sign the Motion, a recently-resigned AUSA from the SDNY prosecution team (AUSA-1) wrote the following regarding the letter that SDNY filed with the Court on January 22, 2025: “[U.S. Attorney-1] obviously has political ambitions, and I think suggesting we doubt that just costs us credibility.” Ex. B at 2

[snip]

AUSA-1 also wrote that it was “pretty plausible” to him that U.S. Attorney-1 “had a political motive in bringing this case.” Id.

[snip]

AUSA-1 pushed back. “I know that none of us were motivated by [U.S. Attorney-1’s] political aspirations, but I don’t think any of us know for sure what motivated [U.S. Attorney-1].” Id. AUSA-1 added the following comments in the draft of the letter:

“[T]he point to me is just to separate ourselves from [U.S. Attorney-1].”

“To me the point about the statements not naming EA feels a little too lawyerly—almost a technicality in this context since [U.S. Attorney-1] was obviously referring to EA [in the op-ed].”

“I don’t want to ask anyone to reject the theory that [U.S. Attorney-1] had a political motive in bringing this case. Seems pretty plausible to me.”

“I don’t want to say anything that picks a fight with EA’s accusation of political ambitions against [U.S. Attorney-1]: [U.S. Attorney-1] obviously has political ambitions, and I think suggesting we doubt that just costs us credibility.” Ex. B.

Exhibit C: Another discussion about how to respond to Eric Adams’ complaints about Damien Williams’ public comments

AUSA-1 explained that he hoped to “distance” the SDNY prosecution team from U.S. Attorney-1, “enough that [Judge] Ho and [President] Trump will know we don’t approve of what he did, but not so much that we magnify the scandal.”

[snip]

On January 19, 2025, AUSA-1 circulated a draft of the letter SDNY ultimately filed on January 22, 2025, in which the prosecutors argued—wrongly—that Mayor Adams’ “criticism of the article and the fact of its publication are beside the point.” ECF No. 102. In the email attaching the draft of the letter, AUSA-1 explained, “[b]asically, I tried to . . . distance us from [U.S. Attorney-1] enough that [Judge] Ho and [President] Trump will know we don’t approve of what he did, but not so much that we magnify the scandal.” Ex. C. In response to the draft, AUSA-3 argued, “I think we want to create distance between those prosecutors and the [] US Attorney.” Id. Another AUSA on the SDNY prosecution team (AUSA-4) added, “I agree that we should create some space from [U.S. Attorney-1], but I also think we should avoid anything that looks like us fighting with [U.S. Attorney-1] (which would be counterproductive).”

As the SDNY prosecution team continued to debate the substance of the draft letter, AUSA4 suggested that the prosecutors should argue that Mayor Adams was “wrong about his claim that our prosecution is motivated by [U.S. Attorney-1’s] political interests.” Ex. C.

Exhibit D: A November 8 text in which Scotten said he wasn’t going to pursue a judgeship right away

Just days after the 2024 election, in response to a text message asking if it was “time” for AUSA-1 to “take a seat on the bench,” AUSA-1 responded: “Got to convict Adams before I can think about anything else.”

[snip]

On November 8, 2024, AUSA-1 received a message with the following question: “You think it’s time to take a seat on the bench? Lol.” Ex. D. AUSA-1’s response included, “Got to convict Adams before I can think about anything else.”

[snip]

It is thus apparent from the context that, just as AUSA-1 hoped to convict Mayor Adams as the last notch in his belt before he took a “seat on the bench,” Ex. D,

Exhibit E: A July 17, 2024 discussion about trial strategy.

At least one of the prosecutors was as aggressive and careerist as U.S. Attorney-1. For example, on July 18, 2024, AUSA-1 exchanged messages with another AUSA on the SDNY prosecution team (AUSA-2) about efforts to “exclude” a “defense witness” in this case. Ex. E. AUSA-1 remarked that an “invocation is better” than “[l]etting him come in and refuse cross.”

Exhibit F: A September 5, 2024 comment from one of the other AUSAs about how they portrayed the influence relationship

On September 5, 2024, another AUSA on the SDNY prosecution team (AUSA-3) acknowledged in a text message to AUSA-1 that “we did a lot of gymnastics around the influence point” in the Indictment, and argued that “maybe making him the one exploiting the corrupt relationship works better.” Ex. F

Exhibit G: A January 21 response to a draft of the filing

Later on January 21, AUSA-1 circulated a revised version of the draft with comment bubbles that included:

With respect to the “beside the point” sentence that was ultimately included in the letter, AUSA-1 noted that U.S. Attorney-2 “suggested this sentence, which makes the point less oblique—her objection to the prior version—while in my view still preserving our effort to distance ourselves from the article.”

AUSA-1 also noted: “I think we have a sufficiently strong ending without the prior ending (any US attorney would signed) which [U.S. Attorney-2] and others felt might be read as an attempt to hem in the new crew at main justice before they had a chance to weigh in on the case.”

Exhibit H: Another message about the January 21 filing

In a separate message, AUSA-1 asserted that he preferred a strategy that “buys us more credibility by first making clear we’re not defending the [U.S. Attorney-1] article before then going on the attack.” Ex. H

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Judge Dale Ho Had Emil Bove Authenticate His Letter to Danielle Sassoon

March 4, 2025/29 Comments/in emptywheel /by emptywheel

A bunch of legal and governmental ethics experts, as well as Norm Eisen’s Democracy Defenders Fund, have filed an amicus motion that could (though is unlikely) to affect Judge Dale Ho’s forthcoming consideration of whether to dismiss the case against Eric Adams.

The motion asks Judge Ho to ask Paul Clement, in the latter’s role as an amicus, to consider whether Emil Bove violated professional ethics in trying to dismiss this case.

Amici submit that the inquiry should include whether Acting Deputy Attorney General Emil Bove violated the Rules of Professional Responsibility and applicable Department of Justice guidelines in his conduct of this matter.

[snip]

First, to direct Mr. Clement to conduct a factual inquiry into whether Mr. Bove violated any of the Rules of Professional Conduct or Department of Justice prosecutorial policies or standards; and

Second, to hold an evidentiary hearing to determine whether, in fact, Mr. Bove violated any of the Rules of Professional Conduct or Department of Justice prosecutorial policies or standards.6

6 Pursuant to Canon 3(B)(6) of the Code of Conduct for United States Judges, this Court has the discretion to impose a remedy – beyond denial of the Motion to Dismiss – if it determines that Mr. Bove violated any of the Rules of Professional Conduct. The Canon provides that “[a] judge should take appropriate action upon receipt of reliable information indicating the likelihood that . . . a lawyer violated applicable rules of professional conduct.” (Emphasis added.)

They include a list of rules that Bove might have violated.

RPC 5.1(b)(2). This Rule requires that Mr. Bove, as a supervising lawyer in the Department of Justice, ensures that the lawyers he supervises comply with the Rules of Professional Conduct, including Acting U.S. Attorney for the Southern District of New York Danielle Sassoon, and lawyers in the Department of Justice’s Public Integrity Section, whom Mr. Bove directed to sign the Motion;

RPC 1.11(f)(3). This Rule prohibits a lawyer who is a public official from accepting an offer of anything of value in exchange for influencing official action. If, in fact, Mr. Bove accepted an offer from Mayor Adams as a quid pro quo in the form of cooperating in the enforcement of the Administration’s immigration policies, he may have violated this ethical duty;

RPC 3.3(a)(1). This Rule prohibits Mr. Bove from knowingly making a false statement of fact or law to a tribunal. If the reasons given by Mr. Bove in support of his Motion and his statement that there was no quid pro quo are false, he may have violated this ethical duty; and

RPC 8.4(d). This Rule prohibits a lawyer from engaging in conduct that is prejudicial to the administration of justice. If Mr. Bove’s justifications for the Motion are pretextual and an abuse of his prosecutorial power, granting the Motion may be prejudicial to the administration of justice.

The most compelling theory substantiating abuse was the way Bove serially threatened attorneys with investigation and firing if they did not sign onto his motion to dismiss the case, along with the investigations he initiated against those who refused.

If either or both of the lawyers who signed the Motion were pressured into doing so, as has been reported, this would irrevocably taint the Motion. By signing the Motion, under Rule 3.3(a)(1), Mr. Bove represented to this Court that the Motion did not contain a false statement of fact or law. There is a substantial basis here to inquire whether Mr. Bove made representations knowing at the time that they were false. The Court should not be placed in the position of granting a Motion lacking in honesty and integrity.

[snip]

When the prosecutors on the team prosecuting Mayor Adams expressed concerns about the legal and ethical propriety of the dismissal, Mr. Bove responded with a campaign of retaliation — placing them on administrative leave and initiating investigations. Bove Letter at 1. These actions are inconsistent with Mr. Bove’s duty to seek justice.5

[snip]

Punishment of career prosecutors for adhering to their oaths and ethical obligations, if proven, would certainly constitute conduct prejudicial to the administration of justice.

The amicus also notes that, particularly in the face of Bove’s claim that DOJ attempted to interfere in an election by indicting Mayor Adams nine months before the Democratic primary, his efforts to dismiss the indictment months before the primary may have been intended to influence an election.

By arguing to the Court that the prosecution should be dismissed because it is interfering with Mayor Adams’s ability to run for re-election, Mr. Bove has raised the specter that dismissal is being sought with the purpose of affecting the upcoming June 24 primary election—now just a few months away—in which Mayor Adams is a candidate. Hearing Transcript at 26. It is also apparent that dismissal would give Mayor Adams an electoral advantage he otherwise would not have. In sharp contrast, Ms. Sassoon has explained that the decision to bring the indictment in September 2024 was made nine months before the June 2025 Democratic Mayoral Primary and more than a year before the November 2025 Mayoral Election and “complied in every respect with longstanding Department policy regarding election year sensitivities and the applicable Justice Manual provisions.” Sassoon Letter at 4

Now, I’m skeptical that this request will lead to a fulsome evidentiary hearing about Bove’s conduct.

But by putting all this on the record, including the threats to prosecutors, it might provide Ho a tool to do something else he laid the basis to do.

The lawyers included the transcript of the hearing with their motion. And there’s a part of it that was far more subtle than what made into reports of the hearing.

Virtually every report of the hearing described that the question of whether Ho should rely on amici came up. Most focused on Bove’s attack on Carey Dunne and Mark Pomerantz, and his request that Ho ignore that amicus.

I do object to consideration of the second amicus at Dkt. 128 purported to be filed on behalf of a series of former U.S. Attorneys. And, again, acknowledging the Court has broad discretion about if, how, and when to invite amicus participation, a brief authored by Carey Dunne and Mark Pomerantz, who are both central to the investigation at the New York District Attorney’s Office of President Trump, it just comes from a place of such bias and lack of impartiality, that that’s not a friend of the Court’s submission. That’s a group of people claiming that — I think the words in the brief are there should be — I think the word “roving” might have even been used, a roving factual inquiry into the situation.

That’s just partisan noise. That’s not an amicus brief actually trying to help your Honor with the issues that are before you. So I submit that the Court should not accept the amicus at Dkt. 128.

But before that — the first time Judge Ho raised the amicus briefs — he did so after questioning Alex Spiro about the letter he sent to Bove on February 3, which Spiro himself docketed. After Spiro gave a representation of why he wrote that letter, Judge Ho turned to Bove and asked him about the February 10 letter he sent Danielle Sassoon, which was before him because it was attached to the Pomerantz amicus.

This first discussion was not about whether Bove opposed the amicus itself. It was, like the preceding discussion about why Spiro wrote the February 3 letter, whether the February 10 memo he sent Sassoon was authentic.

Mr. Bove, I believe this is a memorandum dated February 10, 2025, regarding the Justice Department’s decision to dismiss the case, and that is titled “Dismissal Without Prejudice of Prosecution of Mayor Adams.” Is that right?

MR. BOVE: Yes, Judge.

THE COURT: And you’re familiar with this memo?

MR. BOVE: Yes.

THE COURT: Are you the author of the memo?

MR. BOVE: Yeah. Those are my initials.

THE COURT: Okay. And this is authentic? It was submitted in connection with an amicus brief. I want to confirm that.

MR. BOVE: This is the memorandum I sent to Ms. Sassoon on that date. I do have a procedural objection to the amicus brief we’re talking about, but I want to be responsive first to the Court’s question.

THE COURT: Okay. I mean, I haven’t made any kind of ruling on the amicus brief.

MR. BOVE: I would like to be heard on that point.

THE COURT: I do want to address your views about whether or not the Court should consider certain things, including the amicus brief. But this memo, Mr. Bove, did this represent the official views of the Justice Department as of this date?

MR. BOVE: I mean, this is the authentic document that I sent to Danielle Sassoon.

THE COURT: Okay. And when I consider the government’s motion to dismiss, is it appropriate for me to consider what’s in this memo?

MR. BOVE: No.

THE COURT: Okay. Explain that to me.

MR. BOVE: The record here is the motion that I made. The only question — basically, if you start with the Rinaldi footnote 15, the Supreme Court case, you look at the more recent Second Circuit cases, Blaszczak, HSBC, the only two questions are is there some concern about harassment. Your Honor has addressed that conclusively today.

And then, second, is there a question about whether the motion is so clearly contrary to the public interest that the Court should not grant it.

[snip]

Considering documents outside the record I don’t think is part of that discretion. Even if your Honor considers this, it’s entirely consistent with everything that I’ve said. [my emphasis]

Later, Judge Ho got Spiro to back off his opposition to amici generally (Spiro had raised concerns that, “Any person that comes before the Court could have political motivations”) to state that he did not take a position on the non-Pomerantz memo.

THE COURT: Just so I understand it, what I heard from the government, and, Mr. Bove, correct me if I’m wrong, is that you object to the brief, the second of the two amicus briefs that was filed, the former U.S. Attorneys one, but not to the common cause one. Whereas, Mr. Spiro, you object to both?

MR. SPIRO: We take no position on whether the pending letter motion is part of the record. If it ends there.

THE COURT: I’m sorry. Do you object to the Court considering — granting either of the motions? I shouldn’t put it in terms of the Court. Do you object to either of the motions for amicus submissions? I just want to make sure my record is clear so I understand what I’m doing when I’m ruling.

MR. SPIRO: I don’t take a position on the first letter motion.

THE COURT: Okay. Thank you.

MR. SPIRO: I don’t take a position on it. Any further involvement, I rest on the record I just made.

You’ll recall that two of the questions Ho asked Paul Clement to address were whether he should consider other materials beyond the Rule(48) motion itself.

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;

Now, it’s unclear whether Ho will consider the amicus itself; it is dated Friday (Ho’s deadline for additional amici) but not docketed until yesterday, so he could ignore it on that basis alone. But it does provide a theory by which these letters come in based on Bove’s own conduct.

But he may not need it.

He was clearly focused on something else: Alex Spiro’s letter from February 3, seemingly mapping immigration assistance that Adams would provide if the case were dismissed, and Bove’s letter to Sassoon claiming (among other things) that the investigation by that point was an example of weaponization.

Of note, Judge Ho did not say anything when Bove claimed that his judgement that the case was politicized overrode Ho’s own opinion from January that it wasn’t.

The first is just a straightforward exercise of prosecutorial discretion guided by President Trump’s Executive Order 14147 relating to weaponization of the criminal justice process as well as guidance issued by the Attorney General on the day she was sworn in, February 5, 2025.

And basically what is set forth here is my conclusion that this case, as a matter of prosecutorial discretion, should not proceed because it reflects, at minimum, appearances of impropriety that give cause for concern about abuse of the criminal justice process. And I believe it actually goes further than that and it is an abuse of the criminal justice process.

That matter, which, again, in an exercise of prosecutorial discretion, is, I think, as your Honor alluded to earlier, virtually unreviewable in this courtroom, especially where guided by an Executive Order and direct guidance from the Attorney General.

This claim is legally noxious, because it suggests that Bove can override an opinion from Judge Ho (though Bove never acknowledged that Ho had made that ruling). But Ho didn’t point out that Bove’s opinion basically attempted to overrule Ho’s own earlier opinion.

He did, however, react a bit when Spiro used the leaked Sassoon letter to reiterate his earlier argument about leaks.

MR. SPIRO: Well, I don’t want to digress. We didn’t have a hearing about it. But the reality is, the letter that leaked, the letter that I think we can both agree, sir, the letter that leaked with the back and forth between the Department of Justice did have prejudicial and false information about the mayor in it. There was a letter that leaked, that we can I hope both agree, couldn’t have been leaked, since it was internal to the Department of Justice, from any third outside party or bogeyman.

THE COURT: I’m sorry. You’re not referring to stuff that was the subject of motions practice earlier?

MR. SPIRO: No, I’m talking about now.

THE COURT: Okay.

MR. SPIRO: Yes, your Honor.

THE COURT: I got confused. I apologize. Go ahead.

MR. SPIRO: Not at all. But I’m just saying, I think the Court has to think about that. And the Court can keep thinking about, and the Court can always revisit its beliefs. Earlier in the case when I said things like, doesn’t this seem a little off, and doesn’t this seem a little politically motivated, and doesn’t it seem there are a lot of leaks going on. The Court can look at the cavalier nature with which the prosecutors put things in those letters that went back and forth when the Department of Justice was discussing this matter.

It remains the case that the most likely outcome of this is that Judge Ho dismisses the case against Adams with prejudice, depriving DOJ of any leverage over the Mayor.

But unnoticed by most of the coverage, Ho laid the foundation to rely on exchanges that happened before everything blew up on February 12.

Update: Relatedly, Jamie Raskin and Jasmine Crockett sent Pam Bondi a request for information on the Adams case. Their key hook is the possibility that Bove might have destroyed the notes of the January 31 meeting he confiscated.

All handwritten or electronic notes taken during the January 31, 2025, meeting between Department prosecutors and Mayor Adams’ legal team. If any notes have been destroyed, please provide the names of individuals who destroyed the notes, as well as the dates, manner, and reasons for such destruction.

The request is imperfect in some ways. For example, it doesn’t include Bill Burck and Eric Trump or Trump Organization in the list of conversations; Burck has an apparent conflict by representing both Trump Org and Adams. Similarly, it doesn’t ask for communications from Chad Mizelle, who was clearly in this loop as well.

But it is the kind of thing that–if there were real scrutiny of Bove’s ethical problems–could become a problem with DOJ.

Update: Fixed the first sentence, I hope.

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Pam Bondi Covers Up Foreign Influence Peddling and Lying to the FBI

February 22, 2025/58 Comments/in emptywheel /by emptywheel

Before you watch this superb CPAC performance by the woman paid to enforce the law in the United States, peek ahead to this spoiler.

Eric Adams’ lawyers — Alex Spiro (the lawyer the Mayor shares with Elon Musk) and Bill Burck (the lawyer the Mayor shares with Trump Organization) — sent Judge Ho a letter celebrating the kind of improper out-of-court public statements they were wailing about in December.

We are writing to alert the Court to recent out-of-court statements by Attorney General Pam Bondi and her chief of staff that constitute admissions of a party opponent under the Federal Rules of Evidence. Fed. R. Evid. 801(d)(2). The Attorney General described the indictment in this case as “incredibly weak,” and said that the charges against the Mayor were so weak she doubted prosecutors could secure a guilty verdict. “That,” she said, “is the weaponization of government.” Her statements followed similar statements by her chief of staff on Wednesday, February 19, 2025. See, e.g., Chad Mizelle, @ChadMizelle47, X (Feb. 19, 2025 12:42 PM), https://x.com/chadmizelle47/status/1892268416267911251?s=46 (“The case against Mayor Adams was just one in a long history of past DOJ actions that represent grave errors of judgement.”); id. (“Dismissing the prosecution was absolutely the right call.”). The Acting Deputy Attorney General has similarly recognized that this “case turns on factual and legal theories that are, at best, extremely aggressive.” Dkt. 125-2 at 7.

When Damien Williams posted a website barely mentioning Adams, Spiro deemed it a dangerous attempt to influence a legal outcome. But when AG Bondi went to a raging conference featuring Nazi salutes to give this error-riddled screed, Spiro and Burck proclaimed it federal evidence.

And perhaps Quinn Emanuel’s prominence makes them sluggish. But they posted this more than two hours after Judge Ho issued his order appointing Paul Clement as amicus, seemingly mooting this kind of stunt lawyering.

With that in mind, I give you a woman who claims to want to take on drug cartels but seems scared to take the A train uptown:

Ted Cruz: So, so Pam, the media are going crazy about New York Mayor Eric Adams and the charges that were dismissed against him.

Pam Bondi: So glad you brought that up.

Ted Cruz: Um, tell us what the story is, what happened there, and why were the charges dismissed?

Pam Bondi: Sure. And Emil, who has done an incredible job, he worked on this case, he looked at this case.

It was an incredibly weak case filed to make deportation harder. That’s why they did it. They took one of the biggest mayors in the country off the playing field in order to protect their sanctuary city. This case, it was so incredibly weak. It was about increases in airline tickets, uh, upgrades in airline tickets in his official capacity without getting into all the details of, of the fact, I don’t even think it could survive a verdict.

Excuse me. Incredibly weak case. That is the weaponization of government. That’s lawfare. When you’re filing, that’s lawfare. When you’re filing cases like that to keep someone who criticized Joe Biden who said — they took away his security clearance — So he could not get the details, so he could not help enforce the deportation efforts in New York.

And, you know, these people are going after him. Ride a subway in New York. It’s not safe. Violent crime is at an all time high, and that’s what they’re doing? So it’s not about weaponization, it’s about ending their weaponization of the government and fighting violent crime and enabling cities like New York and mayors like Eric Adams to enforce Donald Trump’s immigration policies. [emphasis mine]

So much garbage here.

No, Teddy Cancun. The charges have not yet been dismissed — that’s not how this works.

No, Pam, violent crime is not at an all-time high–under Joe Biden violent crime went down. Murders, at least, are down in NYC. Subway crime was already down — and then it came down further after congestion pricing went into effect, something your boss is trying to reverse, something your Department will have to litigate in court and on which you have now demonstrated bias.

How the hell does the Attorney General [pretend not to] know this?

I have requested comment about Ms. Bondi’s misrepresentations from DOJ.

But it’s Bondi’s misrepresentation of the crimes charged against Adams — and the charges that Emil Bove’s intervention staved off — that facilitates corruption.

Whereas her Chief of Staff, Chad Mizelle (in misleading screed also shared by Spiro and Burck) dismissed the four counts of the indictment that pertain to straw and illegal foreign donations by claiming they were just the campaign donations of a successful politician:

But all successful politicians, no matter the party, receive campaign contributions.

Bondi simply found a different way to hide the allegations that that Mayor Adams has been on the take from Türkiye.

She claimed that, “It was about increases in airline tickets, uh, upgrades in airline tickets in his official capacity.” Whereas Mizelle claimed this was only about campaign contributions (even the foreign ones of which he treated as legal), Pam Bondi claimed it was only about airplane upgrades.

The indictment debunks the Attorney General’s claim that this was just about official travel. Just one of Adams’ Turkish trips was treated as an official trip would have been, with full transparency.

10. In 2015, ERIC ADAMS, the defendant, took two official trips to Turkey. His first trip, in August 2015, was arranged by the Turkish Consulate General in New York City (the “Tm-kish Consulate”) and paid for in part by the Turkish Consulate and in pa1t by a for-profit educational conglomerate based in Istanbul (the “Turkish University”). The second trip, in December 2015, was airnnged by the Turkish Official and a Turkish entrepreneur (the “Promoter”) whose business includes organizing events to introduce Turkish corporations and businesspeople to politicians, celebrities, and others whose influence may benefit the corporations and businesspeople, For both trips, ADAMS received free business class tickets on the Turkish Airline. Unlike ADAMS ‘s subsequent travel with the Turkish Airline, ADAMS reported his 2015 travel to Turkey on financial disclosure forms filed with the New York City Conflict of Interest Board (the “COIB”), as he was required to do annually at all times relevant to this Indictment.

As the indictment alleges, for his other trips facilitated by Türkiye, at times routed awkwardly through Istanbul so he could avail of these benefits, Adams hid the benefits.

ADAMS did not disclose the travel benefits he had obtained in annual financial disclosures he was required to file as a New York City employee. Sometimes, ADAMS agreed to pay a nominal fee to create the appearance of having paid for travel that was in fact heavily discounted. Other times, ADAMS created and instructed others to create fake paper trails, falsely suggesting that he had paid, 0r planned to pay, for travel benefits that were actually free. And ADAMS deleted messages with others involved in his misconduct, including, in one instance, assuring a co-conspirator in writing that he “always” deleted her messages.

But contrary to the Attorney General’s misrepresentation, this is not just about airplane upgrades (or luxury hotels in Türkiye).

The indictment describes how Adams repeatedly laundered Turkish donations through straw donors in the US. Both Bondi and Mizelle keep suggesting to their audience that … none of this matters, none of this — charged as foreign donations exceeding $25,000 in both 2021 and 2023 — compromises New York City governance and US security.

b. On June 14, 2018, the Turkish Official exchanged messages with the Adams Staffer, asking “how much can companies donate?” 1 The Adams Staffer explained that only individuals could donate to the 2021 Campaign.

c. On June 22, 2018, ADAMS attended a fundraiser for the 2021 Campaign. The Airline Manager, among others, organized and attended the event. Following the event, the Turkish Official messaged the Adams Staffer, asking for the “list of the participants of the June 22 meeting,” The Adams Staffer then sent the Turkish Official ”The list for 6/22/18,” which included the names of various persons who donated to the 2021 Campaign in the preceding days or who donated in the following days, raising in excess of $15,000.

d. A promotional flyer for the June 22, 2018 fundraiser listed as one of the fundraiser’s hosts a friend of the Airline Manager who owned an airport transportation business (“Businessman-2”), In a series of messages exchanged with the Adams Staffer, Businessman-2 stated that he had facilitated a straw donation through an associate, Records from the CFB show that the associate ultimately donated $3,000 in his own name and described himself as unemployed.

[snip]

20. ERIC ADAMS, the defendant, also sought to arrange for his campaigns to receive unlawful contributions from Turkish nationals, which would be routed through U.S.-based straw donors.

a. On June 22, 2018-the same day as the fundraising event just describedthe Adams Staffer and the Promoter discussed by text message a possible trip by ADAMS to Turkey. The Promoter stated, in part, “Fund Raising in Turkey is not legal, but I think I can raise money for your campaign off the record.” The Adams Staffer inquired, “How will [ADAMS] declare that money here?” The Promoter responded, “He won’t declare it … Or … We’ll make the donation through an American citizen in the U.S …. A Turk … I’ll give cash to him in Turkey … Or I’ll send it to an American … He will make a donation to you.” The Adams Staffer replied, “I think he wouldn’t get involved in such games. They might cause a big stink later on,” but “I’ll ask anyways.” The Adams Staffer then asked, “how much do you think would come from you? $?” The Promoter responded, ”Max $100K.” The Adams Staffer wrote, “100K? Do you have a chance to transfer that here? … We can’t do it while Eric is in Turkey,” to which the Promoter replied, ”Let’s think.” After this conversation, the Adams Staffer asked ADAMS whether the Adams Staffer should pursue the unlawful foreign contributions offered by the Promoter, and contrary to the Adams Staffer’s expectations, ADAMS directed that the Adams Staffer pursue the Promoter’s illegal scheme.

b. In November 2018, Businessman-1-the wealthy Turkish national who owned the Turkish University, a for-profit educational conglomerate in Turkey, and whom ADAMS met there in 2015-visited New York City. ADAMS and the Adams Staffer met with Businessman-1 at Brooklyn Borough Hall. At the close of the meeting, Businessman-1 offered to contribute funds to the 2021 Campaign. Although ADAMS knew that Businessman-1 was a Turkish national who could not lawfully contribute to U.S. elections, ADAMS directed the Adams Staffer to obtain the illegal contributions offered by Businessman-1. Following up on this directive, ADAMS wrote to the Adams Staffer that Businessman-1 “is ready to help. I don’t want his willing to help be waisted [sic].” As ADAMS directed, the Adams Staffer maintained contact with Businessman-1 through intermediaries, culminating in ADAMS accepting straw donations of Businessman-1’s money, discussed below.

[snip]

b. On July 11, 2021, the Adams Staffer asked the Promoter how much would be donated, explaining in a message that she needed to “tell [ADAMS] a net number.” When the Promoter estimated between $35,000 and $50,000, the Adams Staffer replied that the Promoter earlier “had mentioned 200K.” When the Promoter explained that the requisite number of straw donors could not be gathered, the Adams Staffer offered to help with that aspect of the scheme. The Promoter responded, ”Hnnnm then great,” and when the Adams Staffer then wrote “From what I gathered you’ll distribute the money,” the Promoter responded “Yes.” The Adams Staffer later told ADAMS that the estimated total amount of the foreign donations would be $45,000.

c. In August 2021, the Promoter, the Adams Staffer, and the president of the Turkish University’s American campus (the “University President”) exchanged messages and voice notes explicitly discussing the plan to funnel Businessman-1 ‘s contribution to the 2021 Campaign through the Turkish University’s U.S.-based employees. The Promoter assured the Adams Staffer that those employees are “[U.S.] citizens and green card holders.” The Adams Staffer told ADAMS about the plan to funnel Businessman-1 ‘s contribution through U.S.-based straw donors, and ADAMS approved the plan, knowing that Businessman-1 was a Turkish citizen.

[snip]

b. The Adams Fundraiser suggested that the true foreign donors make their contributions through straw donors considerably in advance of the event at which ADAMS would meet the true foreign donors, so that the event did not appear connected to the contributions. As the Adams Staffer explained to the Adams Fundraiser in a text message regarding the planned attendees, “Mayor knows most of them from turkey[.] The People who has business here as well.” The Adams Staffer and the Promoter agreed to execute this plan, which ADAMS approved.

c. The Adams Fundraiser, the Promoter, and the Adams Staffer scheduled an event for September 20, 2023 in a private room at a Manhattan hotel. To conceal the event’s true purpose, the Promoter provided a PowerPoint presentation billing the event as a dinner hosted by “International Sustainability Leaders” with the subject “Sustainable Destinations” and an attendance price of $5,000. The event was not publicized or listed on ADAMS’s public calendar. The Adams Fundraiser entered the event on ADAMS’s private calendar as a “Fundraiser for Eric Adams 2025,” with the host listed as the Promoter, a goal of”25k,” and the note “Total Submitted before the event: $22,800.”

d. Prior to the scheduled fundraiser, the Promoter collected payments of $5,000 or more from attendees, many of whom were foreign nationals. The Promoter then used a portion of the attendees’ payments to make straw donations to the 2025 Campaign, by sending cash from the foreign national donors to the Adams Staffer. The Adams Staffer then distributed $2,100 in cash to at least three straw donors who each made an online $2,100 contribution to the 2025 Campaign

In other words, to sustain her claims of weaponization before the braying mob, the Attorney General of the United States completely dismisses the import of public officials secretly being on the take of foreign powers.

And all that’s before the efforts to lie to the FBI and destroy evidence with which SDNY was poised to charge the Mayor, before Emil Bove intervened just in time, a planned indictment about which Bondi had personal notice.

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.

In her first big public appearance, in her public effort to substantiate her claims of weaponization, Pam Bondi lied. She lied about threats to America. She lied about foreign influence peddling. She lied to cover up lies to the FBI. She even lied — or perhaps simply confessed a white non-resident’s terror — about the New York Subway.

In her first big public appearance, Pam Bondi lied to cover up the true nature of allegations charged against a corrupt Democrat.

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Fridays with Nicole Sander

February 21, 2025/43 Comments/in emptywheel /by emptywheel

Listen on Spotify (transcripts available)

Listen on Apple (transcripts available)

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Dale Ho Brings in the Conservative Cavalry

February 21, 2025/33 Comments/in emptywheel /by emptywheel

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.

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Judge Dale Ho’s Messy Dockets

February 21, 2025/54 Comments/in emptywheel /by emptywheel

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)

Update, March 4: After reading the transcript of the hearing, I wanted to correct a point: Mayor Adams did consult with Spiro before saying he understood he could be recharged.

THE COURT: OK. And, Mayor Adams, I just want to confirm with you that, under the terms of the motion to which you’re consenting, the government may reindict you on charges arising from the same events underlying your current indictment subject to, you know, prohibitions on protected classes and statute of limitations, but that they could do that in the future in their discretion?

(Defendant confers with counsel)

THE DEFENDANT: Yes, I understand that, Judge. I have not committed a crime and I don’t see them bringing it back. I’m not afraid of that.

THE COURT: OK. Thank you, Mayor Adams. If at any time you want to consult with Mr. Spiro or your legal team, just let me know. It’s really important that, you know, to have a valid understanding of what is happening today, that you have any questions answered before you answer any of mine.

THE DEFENDANT: I appreciate that because I failed my law class. [my emphasis]

Also, Ho’s question about security clearances did pose the hypothetical of a governor of a border state.

THE COURT: And separate and apart from New York’s, the context of New York City, could it apply to other chief executive-type public officials, like the mayor, like a governor of a border state, for example, who also has public safety immigration-related and national security responsibilities, if one of them were ever subject to investigation or prosecution?

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Chad Mizelle’s Appearance of Impropriety

February 19, 2025/41 Comments/in emptywheel /by emptywheel

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.

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The Law Is Bigger Than The Bullies

February 18, 2025/19 Comments/in 2024 Election /by Ed Walker

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.

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Posts

Todd Blanche Fails Effort to Force SDNY AUSAs to Frame Themselves

Judge Dale Ho Upends Emil Bove’s Weaponization

Emil Bove Calls Resignation in Face of Unethical Order “Misconduct”

Judge Dale Ho Had Emil Bove Authenticate His Letter to Danielle Sassoon

Pam Bondi Covers Up Foreign Influence Peddling and Lying to the FBI

Fridays with Nicole Sander

Dale Ho Brings in the Conservative Cavalry

Judge Dale Ho’s Messy Dockets

Chad Mizelle’s Appearance of Impropriety

The Law Is Bigger Than The Bullies

Interesting links

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