The Volokh Conspiracy
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Should the Charges Against Mayor Adams Now Be Dismissed With Prejudice … Because of Prosecutorial Misconduct?
That's the powerful argument that Mayor Adams's lawyers are making, citing (among other grounds) the leaking of a resignation letter containing "the wildly inflammatory and false accusation that Mayor Adams and his counsel had, in essence, offered a quid to the Department of Justice in exchange for the quo of dismissal."
I've been following the Justice Department's pending motion to dismiss corruption charges against Mayor Adams, focusing on the question of whether the dismissal involves some sort of illegal quid pro quo. The motion seeks to dismiss the charges without prejudice. Yesterday, the Mayor's skilled defense attorneys filed a new motion to dismiss the charges—with prejudice—based on alleged prosecutorial misconduct in leaking internal Justice Department correspondence critical of the dismissal. The Mayor's new motion raises important issues and highlights why, in my view, the existing motion to dismiss has become even more easily defensible.
To set the stage: On this blog, we've had a debate about the dismissal motion that I think (to some degree) tracks the national debate in New York and elsewhere about the dismissal motion. To simplify, initially there was a wave of outrage about an alleged quid pro quo in the dismissal motion (as suggested in the resignation letter by Acting U.S. Attorney Danielle Sassoon). But faced with sworn denials from lawyers on both sides of the case, that outrage seems to have morphed into concern about whether the dismissal should be with or without prejudice.
Illustrating that transition from the debate here on this blog, VC readers will recall two initial posts by David Post asserting that there was an improper quid pro quo in the dismissal, the first one linking to a full copy of the Sassoon letter and the second one developing her allegation. Josh Blackman responded, and then David Post replied, reasserting his quid pro quo position. I then supported Josh Blackman's view by arguing that motion to dismiss was easily defensible and, in a second post, that there was no quid pro quo. David Post then rejoined with a post entitled: "No Quid Pro Quo. So?" My reading of this post (as suggested by its title) is that David has retreated to the position that whether there was, in fact, a negotiated quid pro quo is unimportant because things will implicitly shake out in way that resembles quid pro quo. I've seen similar arguments elsewhere. And another recent post (relating views of Professor Ryan Snyder) notes the debate over the quid pro quo and then proceeds on the assumption that there was a quid pro quo—without attempting to defend that characterization.
Yesterday's motion by Mayor Adams highlights an overlooked feature of the trajectory of this debate: the mere fact that government prosecutors have leaked an internal allegation of an improper "quid pro quo" has been highly and unfairly damaging to Mayor Adams. I was going to try and summarize the motion's allegations. But it seems best to begin by simply quoting from the motion's powerful introductory paragraph:
Following the Department of Justice's long-overdue decision to dismiss the case against Mayor Adams, someone within the government leaked a February 12, 2025 letter from the former interim U.S. Attorney for the Southern District of New York to the Attorney General. The leaked letter disclosed, among other things, the former interim U.S. Attorney's self-proclaimed confidence in Mayor Adams's guilt; the fact that Southern District prosecutors were planning to re-indict Mayor Adams, including on a new and equally baseless obstruction charge; and the wildly inflammatory and false accusation that Mayor Adams and his counsel had, in essence, offered a quid to the Department of Justice in exchange for the quo of dismissal. The disclosure of this letter to the press was part of an extraordinary flurry of leaked internal Justice Department correspondence that included memoranda from the Acting Deputy Attorney General to the Southern District and an unhinged resignation letter by one of the former line prosecutors on this case. In addition to violating Mayor Adams's fundamental constitutional rights and ability to receive a fair trial, the government's leaks violated numerous statutory and court rules, including the Justice Department's own longstanding policies aimed at curbing prosecutorial misconduct.
The Mayor's new motion goes on to support these allegations with detailed argumentation. I am not endorsing the motion but want to focus here on the quid pro quo issue.
The Mayor's motion discusses, first, allegations in the Sassoon letter about Mayor Adams's guilt and, second, the possibility of "restoring" the credibility of the Adams's prosecution by filing new charges against the Mayor. The motion then turns to a third point: the quid pro quo allegations in the leaked letter:
Third, and perhaps most troublingly, the February 12 [Sassoon] letter contained defamatory accusations that Mayor Adams and his counsel had offered the Justice Department an illicit bargain to drop the charges against him. The former interim U.S. Attorney claimed to have attended a meeting where Mayor Adams's attorneys "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 only if the indictment were dismissed." Id. at 3 n.1. She dubbed Mayor Adams's efforts to comply with federal initiatives "an improper offer of immigration enforcement assistance in exchange for a dismissal of his case." Id. at 3.
Notwithstanding there was no quid pro quo, see ECF No. 130, news outlets across the country zeroed in on that inflammatory rhetoric, and the February 12 letter has dominated front-page news ever since. Its contents have led to a litany of public condemnations of Mayor Adams and calls for his resignation. Mayor Adams's political opponents have capitalized on the letter's false allegations, using it to promote their own campaigns. The New York Times reported that the leak of a planned new indictment "drop[ped] a bit of a bomb here, at least to anyone outside the Justice Department." And the carnival continued on February 19, as protestors heckled Mayor Adams outside the courthouse when he arrived for his hearing.
The motion points out what seem indisputable: The leaking of the Sassoon letter must have been done by a Justice Department prosecutor. After all, the letter was internal Justice Department correspondence between Ms. Sassoon and the Attorney General. And its seems an almost indisputable follow-on inference, as alleged in the motion, that "[o]nly the government actors who wish to see Mayor Adams prosecuted have benefitted from the leak, and only those same bad actors would have had access to the leaked material."
The motion further points out the letter's leak has caused enormous damage to the Mayor, such as the resignation of four deputy mayors and other political fallout. The motion then explains why the quid pro allegations in the letter were particularly damaging:
All this was caused by the government's decision to leak the February 12 letter and its falsehoods. As reported by The New York Times, "in this extraordinary letter to the attorney general, [the former interim U.S. Attorney] says, I was sitting in the room when the mayor's lawyers and the Justice Department were working out this deal. And basically, the mayor was offering assistance for something in exchange for these charges being dropped." To be clear: Mayor Adams and the Justice Department never made or even discussed any deal. See ECF No. 130. Indeed, it is a ludicrous notion that the Mayor's lawyers walked into the Department of Justice and proceeded to try to "bribe" the highest ranking officials in the Department to drop a bribery case, all right in front of the Southern District prosecutors who were pursuing the case. But the letter's disregard for the truth only fueled the fire that an illicit quid pro quo had occurred—all to Mayor Adams's severe detriment. As The New York Times put it: "New York City leaders] are reading these letters coming out from the Justice Department. And their conclusion is that [Mayor Adams is] no longer the mayor of New York City's 8 million residents. [Mayor Adams] appear[s] to be the mayor of Donald Trump's agenda, or at least his immigration agenda."
One technical point that has been lost in much of the discussion is that Ms. Sassoon hedged to some degree and did not allege a direct, negotiated quid pro quo. Instead, she wrote that, in her view, she had attended a meeting where "Adams's attorneys 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 only if the indictment were dismissed." Sassoon Ltr. at 3 n.1 (emphasis added). She then argued that this trade was improper—indeed, improper to such a degree that she needed to resign.
As I explained in my first post, in my view it was easily defensible for the Department to conclude (as seems quite plausible) that forcing the Mayor to sit through a four-to-six week trial would impair Department's enforcement priorities, justifying the dismissal motion. But regardless of how one views that question, I tend to agree with the Mayor's lawyers that an internal Department discussion has now undoubtedly become highly charged "inflammatory rhetoric" through being deliberately and improperly leaked to the public.
Against this backdrop, the Mayor's motion asks District Court Judge Ho to dismiss the charges with prejudice. I think it is a close question whether a judicial dismissal is appropriate in light of the fact that Justice Department prosecutors have, from all the evidence, deliberately leaked a letter that caused enormous political damage to Mayor Adams. Andy McCarthy has this interesting analysis (behind a National Review paywall), concluding that, given the demanding standard for dismissing a case, the Mayor's dismissal motion is so weak that it "borders on the frivolous." I'm not so sure. In many cases involving prejudicial leaks, it is impossible to determine who is responsible. Indeed, in this very case, previous defense motions based on other pre-trial leaks were rejected by the district judge on grounds that they did not necessarily come from the government. But, from all appearances, this latest round of massive adverse publicity could only have been the responsibility of a line, Justice Department prosecutor who wanted the Mayor prosecuted. While the prosecutors were entitled to argue for continuing the case internally, leaking that view constituted politically motivated wrongdoing designed to harm (among others) the Mayor. An appropriate response to that deliberate, Government-caused harm could well be ending the Government's prosecution once and for all.
But regardless of whether the district judge grants the Mayor's new motion to dismiss with prejudice, that motion makes a compelling case that the prosecutors' misconduct, at a minimum, requires swiftly granting the pending motion to dismiss without prejudice. I've already reviewed the deferential standards applicable to judicial review of a motion to dismiss. My conclusion was that the district court would almost certainly need to approve the dismissal motion. The Mayor's new motion only strengthen the need for a quick dismissal.
The Mayor's motion states that he is not "seeking any delay in the Court's resolution of the government's pending motion to dismiss without prejudice." And with good reason. The Mayor, no doubt, wants the charges dismissed as quickly as possible, so that he can focus on running the City and running for reelection. If the district judge were to deny the pending motion to dismiss without prejudice, the net result would be further delay in the case—while the Justice Department would have to decide whether to proceed with the prosecution or to move to dismiss with prejudice. The rule allowing dismissals (Federal Rule of Criminal Procedure 48) is designed, at least in part, to protect defendants' interests. See, e.g., Rinaldi v. United States, 434 U.S. 22 (1977) (per curiam). Denial of the pending motion to dismiss would, on these facts, convert it into an engine for harming the defendant.
And the motion to dismiss with prejudice poses complications for the new leaders of the Justice Department, who are now charged with defending the indefensible leaks of at least one line prosecutor. Judge Ho has called for a response from the Justice Department by March 7 and a reply from the Mayor by March 11, all with an eye to a scheduled court hearing on March 14. One option open to the Justice Department would be to simply agree to the new motion to dismiss with prejudice, which would avoid the need for the new Administration to attempt to justify the damage that the leakers have done. If that is what the Department decides (and I don't have a fully developed view on what it should say), the leakers who were apparently seeking to keep their corruption prosecution alive will have only succeeded in destroying it.
My standard disclaimers apply here, as included in earlier posts. In particular, I am not opining here on general immigration issues or the pros and cons of continuing the underlying corruption prosecution of Mayor Adams.
