The Volokh Conspiracy
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Judge Ho Dismisses - With Prejudice - the Criminal Case Against NYC Mayor Eric Adams
The DOJ's rather heavy-handed attempt to coerce an elected municipal official to do its bidding on immigration matters is firmly and properly rejected
The district court in SDNY has dismissed the criminal case against NYC Mayor Eric Adams. The dismissal is with prejudice, i.e., the charges cannot be re-filed at a later date; the court rejected the DOJ's attempt to have the case dismissed without prejudice, which would have left the DOJ free to re-instate the charges at any time and for any reason. [The lengthy and quite comprehensive opinion by Judge Ho is available here].
"Everything here smacks of a bargain: dismissal of the Indictment in exchange for immigration policy concessions."
I have put lengthy excerpts from Judge Ho's opinion below. A brief summary:
First, the court was highly skeptical of DOJ's asserted rationale for dismissing the charges against Adams, calling them "pretextual." But it felt that it was in no position to deny the motion to dismiss in its entirety, because it would then "have no way to compel the government to prosecute [the] case":
"A court cannot force the Department of Justice to prosecute a defendant. That is by design. In our constitutional system of separation of powers, a court's role in a criminal case is to preside over the matter—not to decide whether the defendant should be prosecuted…. Any decision by this Court to deny the Government's Motion to Dismiss would be futile at best, because DOJ could—and, by all indications, unequivocally would—simply refuse to prosecute the case, inevitably resulting in a dismissal after seventy days for violating the Mayor's right to a speedy trial"
However, as to whether the dismissal should be with or without prejudice, the court - correctly[**] - found that dismissing the charges without prejudice, as the DOJ had requested, would "leave Mayor Adams under the specter of reindictment at essentially any time, and for essentially any reason … a sword of Damocles … that would create the unavoidable perception that the Mayor's freedom depends on his ability to carry out the immigration enforcement priorities of the administration, and that he might be more beholden to the demands of the federal government than to the wishes of his own constituents."
It therefore had no real option other than a dismissal with prejudice.
** Stalwart VC readers may recall the disagreement that erupted on the blog in connection with this case. My position [see here, here, here, and here] was (and is) that the DOJ's motion to dismiss without prejudice was an outrageous and improper attempt to use the threat of criminal prosecution as a means to pressure a public official into co-operating with federal immigration policies. Two of my co-bloggers, Josh Blackman [see here and here] and Paul Cassell [here and here] disagreed. I think it's fair to say that Judge Ho took my side in the argument.
Here are some excerpts from the excellent opinion by Judge Ho, available here (emphases added):
DOJ's Motion states that dismissal of this case is justified for several reasons, including because "continuing these proceedings would interfere with" the Mayor's ability to govern, thereby threatening "federal immigration initiatives and policies." A critical feature of DOJ's Motion is that it seeks dismissal without prejudice—that is, DOJ seeks to abandon its prosecution of Mayor Adams at this time, while reserving the right to reinitiate the case in the future. DOJ does not seek to end this case once and for all. Rather, its request, if granted, would leave Mayor Adams under the specter of reindictment at essentially any time, and for essentially any reason.
The Court declines, in its limited discretion under Rule 48(a), to endorse that outcome. Instead, it dismisses this case with prejudice—meaning that the Government may not bring the charges in the Indictment against Mayor Adams in the future. In light of DOJ's rationales, dismissing the case without prejudice would create the unavoidable perception that the Mayor's freedom depends on his ability to carry out the immigration enforcement priorities of the administration, and that he might be more beholden to the demands of the federal government than to the wishes of his own constituents. That appearance is inevitable, and it counsels in favor of dismissal with prejudice.
DOJ's first asserted rationale for dismissing this case—that it has been tainted by "appearances of impropriety," — is unsupported by any objective evidence. Rather, the record before the Court indicates that the U.S. Attorney's Office for the Southern District of New York prosecutors who worked on this case followed all appropriate Justice Department guidelines. There is no evidence—zero—that they had any improper motives.
As for the immigration enforcement rationale, to the extent that DOJ suggests that Mayor Adams is unable to assist with immigration enforcement while this case is ongoing, such an assertion is similarly unsubstantiated. … The record does not show that this case has impaired Mayor Adams in his immigration enforcement efforts. Instead, it shows that after DOJ decided to seek dismissal of his case, the Mayor took at least one new immigration-related action consistent with the preferences of the new administration. Everything here smacks of a bargain: dismissal of the Indictment in exchange for immigration policy concessions.
Taking a step back from the particulars of this case, DOJ's immigration enforcement rationale is both unprecedented and breathtaking in its sweep. DOJ cites no examples, and the Court is unable to find any, of the government dismissing charges against an elected official because doing so would enable the official to facilitate federal policy goals. And DOJ's assertion that it has "virtually unreviewable" license to dismiss charges on this basis is disturbing in its breadth, implying that public officials may receive special dispensation if they are compliant with the incumbent administration's policy priorities. That suggestion is fundamentally incompatible with the basic promise of equal justice under law.
Ultimately, however, there are two reasons why these points do not support outright denial of DOJ's Motion to Dismiss Mayor Adams's case. … The more fundamental reason [of the two] is that a court, if it were so inclined, would have no way to compel the government to prosecute a case in circumstances like those presented here. If an individual prosecutor seeks to dismiss a case for improper reasons, a court can deny the motion and send the matter back to the government, which can then reassign the case to another prosecutor. But where, as here, a court has substantive concerns about the reasons for dismissal offered by the Justice Department itself, the court does not have the same option. A court cannot force the Department of Justice to prosecute a defendant. That is by design. In our constitutional system of separation of powers, a court's role in a criminal case is to preside over the matter—not to decide whether the defendant should be prosecuted.
Typically, a dismissal under Rule 48(a) "is without prejudice to the government's right to reindict for the same offense, unless the contrary is expressly stated." But if appropriate in light of the purposes of Rule 48(a), a court can grant the motion on the condition that dismissal be with prejudice—ensuring that the charges, once dropped, cannot be resurrected.
DOJ seeks to terminate the prosecution at this time, but it has confirmed that if its Motion were granted, Mayor Adams could be reindicted on the same charges in the future, with no clear limits on the grounds or timeline for reindictment.
DOJ has represented that it, "in its discretion, may or may not at some point revisit whether these charges are appropriate." The prospect of reindictment therefore hangs like the proverbial Sword of Damocles over the accused.
Here, the effect of dismissal without prejudice is unavoidable: The prospect of re-indictment could create the appearance, if not the reality, that the actions of a public official are being driven by concerns about staying in the good graces of the federal executive, rather than the best interests of his constituents.
The parties offer no good reason why dismissal should be without prejudice.
Whether anyone expressly incanted the precise words that they "would do X in exchange for Y" is not dispositive. As the Second Circuit has explained, "[a]n explicit quid pro quo . . . need not be expressly stated but may be inferred from the official's and the payor's words and actions." United States v. Benjamin, 95 F.4th 60, 67 (2d Cir. 2024); Evans v. United States, 504 U.S. 255, 274 (1992) (Kennedy, J., concurring in part and concurring in the judgment) ("The official and the payor need not state the quid pro quo in express terms, for otherwise the law's effect could be frustrated by knowing winks and nods."
But the disservice to the public interest in this case goes beyond DOJ's reliance on a pretextual rationale. If it is true that DOJ sought to extract a public official's cooperation with the administration's agenda in exchange for dropping a prosecution, that would be "clearly contrary to the public interest," Cowan, 524 F.2d at 513, and a grave betrayal of the public trust, because it would violate norms against using prosecutorial power for political ends.
And even if there were no quid pro quo, the breadth of DOJ's immigration enforcement rationale here is stunning. As DOJ acknowledges, the invocation of this rationale in the context of a public corruption prosecution is without precedent
And despite denying that this case involves a quid pro quo with Mayor Adams, DOJ argues that there would be nothing wrong with the executive branch explicitly conditioning dismissal of charges against a public official in exchange for his support of the administration's policy agenda. See id. at 49:5-7 (arguing that, "even if there was a quid pro quo," it would not affect the validity of the Government's Rule 48(a) Motion)
Ultimately, however, the Court would be overreaching if it attempted to force this prosecution to continue. As noted above, a court is not situated—either in terms of institutional competence, or as a matter of its proper role in our constitutional system—to make an assessment as to whether a prosecution "should" continue. A court's role is to preside over cases, not to determine if a case should be prosecuted.
DOJ's position on this Motion is essentially as follows: the Court should dismiss this prosecution because (1) it is tainted with impropriety; (2) it is detrimental to national security and immigration enforcement; and (3) it was a weak case to begin with—but the Court should also allow DOJ to bring the prosecution back at any time, for essentially any reason. For the reasons stated above, the Court cannot and will not authorize such a result.
The Court cannot order DOJ to continue the prosecution, and it is aware of no authority (outside of the criminal contempt context) that would empower it, as some have urged, to appoint an independent prosecutor. Therefore, any decision by this Court to deny the Government's Motion to Dismiss would be futile at best, because DOJ could—and, by all indications, unequivocally would—simply refuse to prosecute the case, inevitably resulting in a dismissal after seventy days for violating the Mayor's right to a speedy trial.
The Court notes only that it has no authority to require that it continue, and that the remedy for what some amici characterize as an abuse of power cannot be for the Court to arrogate to itself more power than it may properly wield in our system of government.
