The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
No Quid Pro Quo. So?
With a deferred prosecution and a dismissal without prejudice, who needs a quid pro quo?
Paul Cassell notes here that the lawyers for Eric Adams have denied, and have offered to make their denial under oath, that there was any prior negotiated quid pro quo involved in the deal under which the DOJ has moved for a dismissal of criminal charges against Mayor Adams. The lawyers wrote:
What we never said or suggested to anyone was 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.
As a consequence, Cassell writes, "the argument that the dismissal motion is inappropriate because a quid pro quo was negotiated has effectively collapsed. Period." (emphasis added). [Though Cassell adds: "To be sure, as noted in my earlier post, one can still legitimately debate whether the dismissal motion was appropriate."]
There's an air of unreality to all of this discussion about whether or not there was a prior negotiated quid pro quo, when in fact it makes no difference whatsoever. Who needs a prior express quid pro quo when you have a deferred prosecution and a dismissal without prejudice?!
Adams doesn't have to agree beforehand to anything for this to be entirely inappropriate. The threat of re-instituting prosecution does all of the work that a prior negotiated agreement would do - it gets Adams to do what the President wants him to do, because everyone involved understands that if he doesn't, the charges will be re-filed and he probably goes to jail. Whether the conversation in which the Attorney General tells Adams that the President would like it if ICE agents could freely enter NYC detention centers, schools, playgrounds, etc. takes place before the motion to dismiss is filed or after the motion to dismiss is filed is entirely immaterial. The result is precisely the same: Adams will take official action as Mayor that he would not otherwise take, not because it is in the interest of New Yorkers, but because of his personal interest in avoiding jail time.
Why else has the DOJ chosen to dismiss these charges without prejudice? What do they think might happen to get them to re-institute the prosecution down the road besides "he didn't play ball"?
And notice, by the way, that, as a coercive tool, the dismissal without prejudice route is far more efficient and effective than a prior negotiated quid pro quo deal. In the latter, you need to specify in advance what actions you want Adams to take; with the former, you can wait and see what you'd like him to do as things move along.
This is not just business as usual. I refer again - for the last time, I promise - to my earlier hypothetical, which needs no express quid pro quo to be effective, and chilling: the Attorney General calls up Justice Barrett, and the following one-sided conversation ensues:
Attorney General: "Justice Barrett, we have information that you have cheated on your taxes, information sufficient to bring forth an indictment against you. We're not going to do that now - but we reserve the right to do so in the future. And surely you know how interested President Trump is in the outcome of X v. Y, now coming before the Court. We know you'll do the right thing."
No quid pro quo needed. Justice Barrett doesn't have to say a word or agree to anything for this to work just fine as a kind of blackmail. [According to Robert Caro's LBJ biography, this was J. Edgar Hoover's preferred modus operandi when he was FBI Director; if the FBI had turned up damaging personal information about a high-ranking political figure, Hoover would dispatch his assistant Clyde Jenkins to speak to the official; Jenkins would inform him that they had the information, and then say something to the effect of "Don't worry; we're keeping it secret." At which point High-Ranking Official was, thereafter, in Hoover's pocket.]
You're free to believe that this is not what Trump is up to here, but I'm quite certain that it is.
