The Volokh Conspiracy
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Prof. Ryan Snyder on the Eric Adams Case
There have been a lot of posts recently about the Department of Justice's treatment of the Eric Adams prosecution. I wanted to pass along this additional perspective I received from Professor Ryan Snyder of the University of Missouri, based on his recent article Trading Nonenforcement:
If There Was A Quid Pro Quo in the Eric Adams Case, It's Unconstitutional
Ryan Snyder
Last week, according to acting U.S. Attorney Danielle Sassoon, the Trump Justice Department made a deal with New York City Mayor Eric Adams: help enforce federal immigration law, and we'll drop the public-corruption case against you. People have rightly criticized that trade as politically motivated, as a weaponization of the justice system, and as a blow to the rule of law.
But those aren't the only problems with the deal: it's also unconstitutional. The President, and the executive-branch officers who assist him, have a duty to "take Care that the Laws be faithfully executed," U.S. Const. art. II, § 3, and to respect the separation of powers. Nonenforcement trades like this one—where the executive branch promises not to enforce the law against someone who has promised to help achieve unrelated goals—violate that duty.
(Obviously, there is a factual dispute about whether a quid pro quo occurred. I personally find Sassoon's account persuasive, but people can make up their own minds on that point. For purposes of this post, I will assume that Sassoon's account is correct.)
As I've explained in prior work, nonenforcement trades allow the executive branch to effectively impose binding rules on an individual or group without Congress's authorization. To achieve that result, the executive uses nonenforcement as a bargaining chip. First, the executive offers not to enforce the law against an individual in exchange for the individual's promise to do something that the executive wants but the law doesn't require. Second, the executive makes a threat: if the individual fails to uphold their end of the bargain, the executive will reverse course and enforce the law. If the individual accepts the offer—and they often do—the resulting trade effectively changes the law on the ground without amending the law on the books.
According to Sassoon, that's precisely what happened here. On January 31, Adams's counsel met with Deputy Attorney General Emil Bove and "repeatedly urged what amounted to a quid pro quo, indicating that Adams would be in a position to assist with the [Justice] Department's enforcement priorities only if the indictment were dismissed." Ten days later, Bove told Sassoon to drop the case against Adams because it had "unduly restricted [his] ability to devote full attention and resources to … illegal immigration." But Bove told Sassoon to dismiss the case "without prejudice," which would allow the Department to resurrect the case in the future. That's a nonenforcement trade: the Department promised not to enforce the public-corruption laws against Adams, Adams promised to help enforce federal immigration law, and if Adams fails to do so, he'll face prosecution.
Of course, nonenforcement trades don't formally have the force of law. In the real world, however, these trades can be every bit as binding as a statute or regulation. Take Adams as an example. If his case is dismissed without prejudice, Adams will face a choice: help enforce federal immigration law or be prosecuted. The law won't formally require Adams to help with immigration, but as a practical matter, he'll have no other choice.
Nonenforcement trades like the Adams deal violate the Constitution in two different ways. First, they violate the President's duty to faithfully execute the law. And second, they allow the executive branch to rewrite the law in violation of the separation of powers.
Let's start with faithful execution of the laws. The Constitution vests the "executive Power" in the President, U.S. Const. art. II, § 1, and provides that "he shall take Care that the Laws be faithfully executed," U.S. Const. art. II, § 3. Those provisions create a general rule that the executive branch must enforce federal statutes. But scholars have identified four possible exceptions to that rule: (1) when the law is unconstitutional, (2) when the executive disagrees with the law on policy grounds, (3) when the executive lacks the evidence or resources to successfully enforce the law, and (4) when the executive believes that punishment is factually or morally unwarranted. To be sure, scholars disagree about the legitimacy of some of those exceptions. But these disagreements don't really matter here, because the Adams nonenforcement trade doesn't fit into any of the categories.
Most of the possible exceptions are easy to dismiss. The Justice Department didn't object to the public-corruption laws on constitutional or policy grounds. The Department didn't say that it lacks the evidence or resources to prosecute the case. And the Department didn't say that punishment is factually unwarranted—indeed, Bove's letter expressly says that the Department decided to drop the case "without assessing the strength of the evidence or the legal theories on which the case is based."
Moreover, the Department doesn't seem to believe that punishment is morally unwarranted. If the Department believed that, it would dismiss the case with prejudice and let Adams get on with his life. Instead, the Department wants to dismiss the indictment without prejudice, so it can dangle the threat of punishment over his head. That's not how you treat someone who doesn't deserve to be punished; it's how you strong-arm someone who is morally blameworthy.
Nonenforcement trades like this one also allow the executive branch to rewrite the law in violation of the separation of powers. The Constitution vests "[a]ll legislative Powers herein granted" in Congress, U.S. Const. art. I, § 1, which gives Congress the power to create binding rules for society and to decide how those rules should be enforced. Congress did that with the criminal laws that Adams has been accused of violating: for example, the wire-fraud statute creates a binding rule (don't commit wire fraud) and says how violations of that rule should be punished (fines or imprisonment up to 20 years). 18 U.S.C. § 1343. In laws like this one, the statutory text and purpose create a strong link between the rule and the punishment—namely, the punishment exists to punish people who broke the rule.
The Adams deal severs that link. Instead of using the wire-fraud punishment to punish wire fraud, as Congress prescribed, the executive branch is using it as a bargaining chip to buy something else. And the executive gets to decide what it buys without any guidance from Congress—effectively allowing the executive to exercise the legislative power of deciding how Congress's laws are enforced.
To be sure, this would be a closer case if the Justice Department were trading for something that was closely related to wire fraud—for example, declining to prosecute a minor participant in a wire-fraud scheme in exchange for testimony against the ringleader. But that's not what we have here; instead, the Department is trading for help with immigration enforcement, which has little to do with wire fraud. Absent Congress's authorization, the Department simply can't make trades like that without violating the separation of powers.
The Adams deal also illustrates one reason why nonenforcement trades are so dangerous: they can allow the executive branch to circumvent constitutional and statutory limits on their authority. In Printz v. United States, the Supreme Court held that the federal government can't force state and local officials to enforce federal law. As a result, the federal government can't force New York City's officials to help with immigration enforcement. The federal government can offer incentives, of course, but until recently, the city had refused to enforce federal immigration law to the Trump Administration's liking.
The Adams deal, however, allows the Administration to do indirectly what the Constitution prohibits it from doing directly. The Administration used its leverage over Adams—leverage created by the public-corruption case—to commandeer New York City's officials and force them to help carry out federal immigration law. That may or may not violate the strict terms of the anticommandeering doctrine, but it certainly violates its spirit. And if the Administration can use the Adams deal to circumvent the anticommandeering doctrine, why not other constitutional limits? For example, what would stop the Administration from changing the terms of the deal and also controlling Adams's speech?
Finally, I should note that plea bargains differ from the Adams trade in several ways (some of which have already been discussed on this blog). First, plea bargains don't usually pose the same problems under the Faithful Execution Clause. Most plea bargains result in a guilty plea, which means that the executive is enforcing the law to some extent. And even when the executive drops some charges as a result of a plea, that decision often reflects other judgments—such as uncertainty about the executive's ability to prove the charges, or a concern about the executive's resources—that fall into one of the recognized exceptions to the general duty to enforce the law. (Deferred-prosecution agreements and nonprosecution agreements, of course, are a different story.)
Second, plea bargains don't usually pose the same separation-of-powers problems as the Adams deal. Of course, plea bargains may require defendants to do something that the executive wants but the law doesn't require. But those requirements are often related to the law that the defendant violated (for example, testifying against a co-defendant). That's a far cry from the Adams deal, which trades nonenforcement of the wire-fraud statute for something that has nothing to do with wire fraud. For these reasons, accepting that the Adams deal crosses constitutional lines doesn't mean that all plea bargains do as well.
Two closing thoughts. First, I freely acknowledge that prior Presidents from both parties have made nonenforcement trades that violate the Constitution. But that doesn't make this trade constitutional—and if each new President could violate the Constitution simply because earlier ones did, we wouldn't have a Constitution at all. Second, it's all too common nowadays for people to argue that something is unconstitutional simply because they dislike it. I certainly don't wish to contribute to that trend. But some things are distasteful and unconstitutional, and when that's the case, I have no problem saying so. This is one of those times.
