The Volokh Conspiracy
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The Motion to Dismiss the Charges Against Mayor Adams Is Easily Supportable
The Justice Department's decision to seek dismissal of the pending charges seems like standard fare in plea bargaining and helps to support a top Administration policy.
I've been following the debate between my co-bloggers David Post and Josh Blackman (and other commentators elsewhere) on the Mayor Eric Adams criminal case. Dedicated VC readers will have seen that David calls the Justice Department's decision to move to dismiss the charges an "outrageous" deal – and in an earlier post, he called it an "odious and reprehensible" deal. Josh calmly responds that this "is the sort of thing DOJ does all the time." Who's right?
As a professor who teaches criminal law (and as former federal prosecutor who cut plea deals), I will weigh in on Josh's side as a descriptive matter, without taking a position on the ultimate merits of whether the Justice Department should have moved to dismiss the charges. This motion to dismiss does not seem "outrageous" to me, particularly since the matter now goes for review by a federal judge.
Initially, exactly what has happened here needs to be clarified. David writes about "the conditions [Mayor Adams] has accepted in return for the DOJ dropping the case against him …." But the Mayor has accepted no such "conditions." This is proven by looking at the text of the Department's motion to dismiss pending before the federal district court, linked here. The motion lists no conditions on the dismissal—DOJ is simply moving to have the case dismissed, without prejudice, as is specifically authorized by Federal Rule of Criminal Procedure 48. Now, to be sure, there may be a tacit recognition by the Justice Department that, going forward, the Mayor will cooperate on immigration matters. But it is well known that the Mayor is generally supportive of greater immigration restrictions. Informally recognizing the reality of the situation is not the same thing as formally imposing "conditions," as David inaccurately (in my view) describes the situation.
But wait, some may argue—its not fair to place the Mayor in a position where he might feel tacitly pressured to follow the political lead of the Justice Department. But here Josh is spot-on—this sort of thing happens all the time. To see an example, one need look no further than this very case. Consider Mayor Adams' position between November 10, 2023, when the Justice Department (acting through the FBI) seized his cell phones in the corruption probe, and September 26, 2024, when the Justice Department indicted him on various federal corruption-related charges. During that time, while he was under federal investigation, Mayor Adams no doubt felt some pressure to follow Biden Administration's lead on immigration and other issues. But that is simply a function of having the possibility of criminal charges hanging over one's head.
Of course, last September, the Biden Administration chose to file charges and, last week, the Trump Administration moved to dismiss them. If the Department's motion to dismiss is granted, things simply return to the status quo ante—that is, Mayor Adams will be placed in the legal position where he was before last September 26. He will have the possibility of having criminal charges being filed hanging over his head. And, to be sure, when the criminal charges have been previously spelled out through a grand jury indictment, that makes the possibility much clearer. But that awkward position is not some unique situation that the current Administration has "outrageously" created. That is simply a function of a background criminal investigation, which has placed the Mayor in an uncomfortable position, regardless of whether charges are actually filed or only a possibility.
But wait, some may argue, the Trump Administration can be expected to uniquely place pressure on Mayor Adams. If true, that argument is simply a question of degree. Indeed, while the Biden Justice Department was investigating the Mayor, there was a robust debate about the pressure the Mayor might feel to follow the lead of progressive Democrats or take a different tack. As is well known, Mayor Adams chose to "buck[] the radical progressive base of his party," as Republican Representative Anthony D'Esposito put it. It is not at all clear that the pressure that the Mayor might now face from the Trump Administration will be greater than the pressure that he felt from the other side of the political spectrum, including the implicit pressure to toe the line of the Biden Administration.
One way to perhaps distinguish the pressures involved is that the Justice Department now apparently predicts that Mayor Adams will provide his assistance in enforcing federal immigration laws—something that is entirely lawful on the Mayor's part and, indeed, perhaps even his duty. The lawfulness of helping to enforce the law quickly distinguishes David's defective hypothetical. David asks what if "the DOJ uncovers evidence that [a Supreme Court Justice] 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." But David's hypothetical would be an illegal deal—specifically conditioning the dismissal on a Supreme Court Justice violating her oath of office.
The Judicial Oath that Supreme Court Justice's take is provided by 28 U.S.C. sec. 453, which unsurprisingly requires judicial impartiality:
I, _________, do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as [Supreme Court Justice] under the Constitution and laws of the United States. So help me God."
Of course, agreeing in advance to rule in a particular party's favor is not "administer[ing] justice without respect to persons." But agreeing in advance to assist in enforcing federal immigration laws—assuming for sake of argument that an (unwritten) advance agreement exists—is entirely consistent with the Mayor's official responsibilities, not a deviation from them.
But there are still more arguments for why the motion to dismiss charges is not, as David argues, "outrageous." I view the motion to dismiss as effectively functioning in the same way as a pre-trial diversion program--something that the Justice Department recognizes as an appropriate way to proceed in some cases. Here, of course, the Department has already filed charges and so the motion to dismiss is operating as something of a belated decision along these lines. But one of the main reasons for a diversion agreement is to conserve prosecutorial resources in one case to deploy them in another. Here the current Justice Department in recent weeks has identified new priorities, specifically focusing on immigration issues and violent crime. Diverting one case to free up resources for use in others is something that the Department routinely does.
Moreover, while the motion to dismiss contains no explicit condition that the Mayor will more effectively enforce federal immigration laws, that seems likely to be the inevitable result of removing what must be an enormous distraction for the Mayor. The Department's motion to dismiss specifically sets out this straightforward conclusion:
… [T]he Acting Deputy Attorney General also concluded that continuing these proceedings would interfere with the defendant's ability to govern in New York City, which poses unacceptable threats to public safety, national security, and related federal immigration initiatives and policies. See, e.g. , Executive Order 14159, 90 Fed. Reg. 8443; Executive Order 14165, 90 Fed. Reg. 8467. The Acting Deputy Attorney General reached that conclusion after learning, among other things, that as a result of these proceedings, Adams has been denied access to sensitive information that the Acting Deputy Attorney General believes is necessary for Adams to govern and to help protect the City.
I haven't seen any persuasive response to this point that the dismissal seems likely to improve enforcement of federal immigration laws. Mayor Adams was to appear in court on April 24, 2025, for what was scheduled to be a four-to-six week trial. Assuming that the Mayor would have worked with his defense attorneys for several weeks before the trial's start and that he would have been in court (and consulting with his defense counsel) essentially non-stop during the proceedings, this means that for about two months the mayor of the nation's largest city would have been effectively disabled from working on the immigration issue—an issue that, by all accounts, is one of the most important priorities for the current administration.
A partial response to this argument about removing the distraction is contained in the letter from Danielle Sassoon, who wrote to Attorney General Bondi opposing dismissal. Sassoon noted the claim
… that the issue is merely removing an obstacle to Adams's ability to assist with federal immigration enforcement, but that does not bear scrutiny. It does not grapple with the differential treatment Adams would receive compared to other elected officials, much less other criminal defendants. And it is unclear why Adams would be better able to aid in immigration enforcement when the threat of future conviction is due to the possibility of reinstatement of the indictment followed by conviction at trial, rather than merely the possibility of conviction at trial. On this point the possibility of trial before or after the election cannot be relevant, because Adams has selected the timing of his trial.
While Sassoon's letter is generally very thoughtful, in my view, this particular part does not bear scrutiny. With respect to the "differential treatment" that Adams would receive compared to other officials or criminal defendants, that is standard fare for plea deals. The proverbial "big fish" can often cut a better deal than a "little fish" precisely because the big fish is better positioned to assist the Government. This is such a commonplace in plea bargaining that it even has a moniker—the "cooperation paradox": those who are most culpable might receive the lowest sentence because they have the most to offer to the Government. One can debate whether a criminal justice system with negotiated resolutions should allow such paradoxes. But given that this is the system that we have today, it does not seem persuasive to criticize the Department for taking advantage of it.
And with respect to whether an immediate dismissal places Adams in a better position to assist compared to standing trial in April, it is of no moment that, as Sassoon writes, "Adams has selected the timing of his trial." The issue is whether, from the Administration's perspective, it is better to have Adams' assistance before April rather than his assistance later. It is obviously better for the Government to have immediate assistance, if for no other reason than that removal of potentially dangerous criminals sooner is better than later because public safety will be better served. And it also seems obvious that the next few months are a uniquely important time for the current Administration's immigration enforcement efforts, another clear-cut reason to avoid distracting the Mayor now.
In weighing in on Josh's side in his debate with David, I want to emphasize I am making a very limited point: that in proposing dropping the charges against Mayor Adams, the Justice Department is acting within the realm of its accepted powers and in a way that seems fairly easy to justify. I'm not arguing that this was the best course of action. I'm aware that others (such as notable commentator Ed Whelan) believe that this motion is simply "weaponization" of the Justice Department in a different direction. But as I understand Whelan's argument, it is predicated on a direct quid pro quo. Here's the way Whelan puts it:
How can [Acting Deputy Attorney General] Bove claim to be ending the "weaponization" of prosecutions when he is advancing a practice that would treat leniently public officials who promise to support the Trump administration's policies and treat more harshly those who don't?
In my view, Whelan fails to demonstrate that the dismissal was predicated on a "promise" to support Trump administration policies. It was well known long before the dismissal motion that Mayor Adams was generally supportive of the approach of the new administration. And (like Sassoon), Whelan does not address the obvious point that the criminal trial was going to essentially put Adams out of action and be a serious impediment to enforcing immigration laws in New York during a multi-week trial. Considering this point does not involve "weaponization" of criminal prosecutions but simply a clear-eyed view of an impediment to having the Mayor's attention focused on an important pending policy issue.
Perhaps, at the margin, the arguments favoring punishing public corruption might nonetheless support pursuing the criminal case against the Mayor. And the fact that seven Justice Department prosecutors have resigned in the wake of the dismissal motion is plainly concerning. But I see the issues surrounding the motion as a close call and believe that the Department did not act "outrageously" by leaning in favor of taking an action that seems likely to further one of the President's top priorities.
Of course, others may disagree with my analysis and believe that, by agreeing to this deal, Mayor Adams has placed himself in an inappropriately compromised position. But it is worth noting that, unlike many other situations, the remedy for this problem is close at hand. On June 24, voters in New York City will have an opportunity to vote in the Democratic primary, where Mayor Adams will be listed along with other candidates. And ultimately, in November, the City's voters will have the final say on who is to be their mayor. If the Mayor's awkward position is a problem for his constituents, they will quickly have their say.
A final point weighing against David's criticism of the deal is that the Department's motion to dismiss is subject to judicial review. It would be one thing if the Department unilaterally executed a deal—for example, the secretly negotiated non-prosecution deal with Jeffrey Epstein that I challenged for many years. But the pending motion to dismiss has been filed on the docket of the U.S. District for the Southern District of New York, where Judge Dale E. Ho will review it. To be sure, motions to dismiss are typically granted. But the very fact of (admittedly deferential) judicial review is yet another reason to doubt that what is happening here is some sort of "reprehensible" approach to the issues.
I want to close with several disclaimers here. In particular, this is not a case where the judiciary is being asked to agree to a distorted set of facts as part of a plea bargain or negotiated resolution. The current Justice Department (speaking through Acting Deputy Attorney General Bove) recently announced that (in the "Bove Memorandum") that it would be Department policy to disclose to the Court at sentencing "all known relevant facts and criminal history." Of course, at this point in the process, the Adams case has not reached sentencing. It is at the negotiation stage, where the Bove Memorandum provides that "absent significant mitigating or intervening circumstances, it will rarely be appropriate for a prosecutor to seek racketeering or terrorism charges at the outset of a case but abandon those charges in connection with a plea deal." Here significant intervening circumstance has arisen: under new leadership, the Justice Department now has a new high priority immigration and public safety effort underway in New York City (and elsewhere) and that continuing the public corruption case would "interfere with the [Mayor's] ability to govern in New York City, which poses unacceptable threats to public safety, national security, and related federal immigration initiatives and policies." One may disagree with that assessment. But that assessment has been candidly and directly presented to the Judge Ho--and to the public--in the motion to dismiss.
Whelan (and others) have also argued that Sassoon was poorly treated by the way the Justice Department handled her request to meet with Attorney General Bondi and her subsequent decision to resign. Those are separate questions I do not discuss here. And likewise, I am not discussing the pros and cons of immigration policy here. I merely seek to clarify issues surrounding the motion to dismiss that appear to have been overlooked in much of the clamorous debate.
Update: I've corrected a few small typos in the original post, called to my attention by a thoughtful (and careful) reader!
