The Volokh Conspiracy
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More on the Outrageous Eric Adams Deal
Co-blogger Josh Blackman gets the Eric Adams Affair all wrong
Co-blogger Josh Blackman disagrees with my take (here and here) that the DOJ's arrangement with Eric Adams is an outrage and a grave threat to those of use who care about liberty. No, no, no, he says; this is "the sort of thing DOJ does all the time." There's "no 'quid pro quo'" involved, because "there is no bribery if a public act is exchanged for another public act."
He's wrong, and it's not too difficult to demonstrate why. Here is his argument, broken down into its basics.
First, he observes (correctly) that "the Department of Justice routinely uses carrots and sticks to 'induce' defendants to support DOJ policy objectives." He writes:
More than 90% of federal criminal cases end up in plea bargains. … Usually, the deals take a similar form: plead guilty, waive appeal rights, and the government will recommend a reduced sentence, or perhaps no sentence at all. … In many cases, a plea deal is conditioned on a defendant doing more than pleading guilty. The United States can condition a plea deal on a defendant testifying against a co-defendant. DOJ can condition a plea deal on a defendant providing information to some government entity, in open court, before a grand jury, or in some other confidential form.
All true.
Of course, as he recognizes, Eric Adams is not an ordinary defendant, but a public official, and the conditions he has accepted in return for the DOJ dropping the case against him all refer to his actions as a public official, i.e. actions he is to take as Mayor of NYC. Blackman asks: Should that matter?
Nope, he says. "This is the sort of thing DOJ does all the time."
Hmmm. His evidence for that startling proposition is, it turns out, completely non-existent: one case, United States v. Richmond, in which the DOJ's attempt to condition the dropping of charges against a public official on that official taking a particular action in his capacity as a public official was invalidated by the district court.
Not the strongest foundation for the idea that the DOJ does this "all the time."
The only other evidence he brings forward is an article written on the Lawfare website by legal scholar Seth Tillman.
That's it, you ask? Yes, that's it.
So I'll ask Josh the same question I asked the commenters on my earlier postings: If the DOJ uncovers evidence that Amy Barrett has cheated on her income taxes, and convinces a grand jury to indict her, and then offers her a deal: we'll defer prosecution (but keep the possibility open), as long as you vote in the government's favor in all cases coming before the Supreme Court.
You're OK with that? Is that the sort of thing the DOJ does "all the time"? If you're not OK with that (and I sure hope you're not), how is that different from what's happening here?
