The outside counsel appointed by the judge considering a Justice Department request to toss the corruption case against Mayor Eric Adams recommended late Friday that the case be dismissed “with prejudice” — meaning prosecutors would not be able to reopen it down the road.
New York Southern District Judge Dale Ho, who appointed attorney Paul Clement to advise him on how to proceed with the extraordinary Department of Justice motion to drop the case it brought, now must decide whether to proceed as recommended, wiping the mayor’s slate clean as he runs for reelection.
In a stunning move shortly after President Donald Trump’s inauguration, the DOJ filed a motion to dismiss the case “without prejudice,” meaning that the feds could revisit the charges at any time.
Critics argued that this acted effectively as unfair leverage over Adams — ensuring his cooperation with the Trump administration’s immigration deportation initiative as outlined by DOJ itself to the court. The Rev. Al Sharpton labeled Adams a “hostage” to Trump.
Paul Clement, former solicitor general under President George W. Bush, speaks at a Federalist Society event in 2024. Credit: Screengrab via C-SPAN
The advice from Clement, a former U.S. solicitor general appointed by Ho to give him guidance on how to proceed, effectively makes that argument moot.
Last month, Acting Deputy Attorney General Emil Bove ordered Manhattan federal prosecutors to dismiss the case, stating that his decision was not based on the merits but instead was necessary so Adams could focus on the Trump team’s signature effort to enforce immigration laws.
Acting Manhattan U.S. Attorney Danielle Sassoon resigned rather than carry out Bove’s order, dubbing the transaction an unlawful “quid pro quo,” a damning accusation that triggered the resignation of four of Adams’ top deputies and calls for the mayor to step down.
Last month, Ho appointed Clement to examine the options in deciding whether to approve or reject the Trump DOJ’s request. In his 38-page brief outlining that advice, Clement wrote that the rules don’t allow a judge to rule on whether a case can be dismissed, but instead allows the court to rule only on how the case should be dismissed — either “with prejudice” or “without prejudice.”
Judge Dale Ho speaks at a Senate Judiciary Committee nomination hearing, Dec. 1, 2021. Credit: Screengrab via Senate Judiciary Committee
“Nothing in the Rule expressly authorizes the Article III [judicial] branch to force the Article II [executive] branch to continue a prosecution against its will, or to appoint a private party to take it over,” Clement wrote.
Clement took specific aim at what he described as the potentially coercive effect of dismissing a case “without prejudice” — killing it but leaving in place the possibility of bringing it back to life.
“A dismissal without prejudice creates a palpable sense that the prosecution outlined in the indictment and approved by a grand jury could be renewed, a prospect that hangs like the proverbial Sword of Damocles over the accused,” he wrote.
He found that this was “particularly problematic” in cases brought against public officials, noting, “There is an inherent risk that once an indictment has been procured, the prospect of reindictment could create the appearance, if not the reality, that the actions of a public official are being driven by concerns about staying in the good graces of the federal executive, rather than the best interests of his constituents.”
In appointing Clement two weeks ago, Ho had asked him to examine whether he could “consider materials” other than the motion itself — a reference to internal Justice Department memos and letters describing the at times tense interactions between Bove and Sassoon.
In a letter to U.S. Attorney General Pamela Bondi, Sassoon had called the motion to dismiss “unlawful,” and alleged that during a Jan. 31 meeting with Bove and Adams’ attorneys in Washington, D.C., the mayor’s lawyers “repeatedly urged what amounted to a quid pro quo, indicating that Adams would be in a position to assist with the Department’s enforcement priorities.”
Adams’ attorney, Alex Spiro, denied this and soon after filed a motion to dismiss the case “with prejudice,” accusing Sassoon of defamation.
In his brief, Clement noted that much of this correspondence is public, and that Ho could certainly consider it when deciding how to proceed. But without explaining his position, Clement wrote that the back-and-forth between Sassoon and Bove supported a dismissal “with prejudice.”
“In discharging that responsibility, courts can go beyond the four corners of the government’s motion, but should go no further than necessary to decide the appropriate remedy,” he wrote. “And, here, there is no need to go beyond the publicly available materials to determine that dismissal with prejudice is the proper remedy.”
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