These are sad days for the rule of law in America. We have always determined guilt or innocence based on the law and the facts, especially in official corruption cases where the public interest in an honest government cannot be dismissed. That is, until U.S. v. Eric Adams.
New York City Mayor Eric Adams pleaded not guilty and elected a jury trial, until he saw another way out of the rat trap: switching positions on President Trump’s crackdown on illegal immigrants and possibly switching political parties as well.
Sweet deal: You get invited to Mar-a-Lago for a meeting, Trump begins to spout that you have been “treated unfairly,” and before you know it, his newly appointed Justice Department moves to dismiss the criminal case “without prejudice,” meaning that it can be refiled in the future.
Why without prejudice? That one left lawyers and the judge scratching their heads. The only inference that can be drawn is that it keeps Adams under Trump’s thumb. If Adams switches positions again, or otherwise gets out of line, the case can be returned to the docket.
Almost everyone wants Adams to have that jury trial — at least everyone except Trump’s Justice Department and Alan Dershowitz, professor emeritus at Harvard Law School.
Dershowitz, an erstwhile Trump attorney, argued in an astonishing article last week that there is “nothing unusual, or wrong,” with the deal the Department of Justice offered Adams, namely, a dismissal without prejudice of his corruption indictment, in exchange for the mayor’s willingness to pile onto Trump’s crackdown on illegal immigration.
Prosecutors make deals all the time, Dershowitz argues, and there are good deals and bad deals. Acting U.S. Attorney Danielle Sassoon and at least six other Justice Department officials in New York and Washington thought it was a bad deal and resigned.
Dershowitz says there is nothing wrong with this quid pro quo. He must know whereof he speaks. In Trump’s first impeachment trial in 2020, he argued there was nothing wrong with Trump’s offering to release impounded military assistance to Ukraine in exchange for Volodymyr Zelensky’s producing some dirt on Joe Biden, then a candidate for the Democratic nomination.
As for Adams, Dershowitz writes that Trump is within his rights to “determine prosecutorial priorities” such as the “prosecution of a mayor who he believes could help him implement that policy.” Lawyers call this the quid pro quo, the bargained-for exchange that occurs in every deal.
Dershowitz points out that prosecutors engage in quid pro quos all the time. They promise defendants a lighter sentencer if they plead guilty; they imply to defendants they will go easier if they cooperate by testifying or wearing a wire to catch a higher-up. Of course, here the quid pro quo for dropping charges had nothing to do with the corruption case itself, which Dershowitz concedes involved “serious crimes that were neutrally investigated before Trump assumed office.”
There are good quid pro quos and bad ones, asserts Dershowitz. Conceding that the Adams one had nothing to do with the case, he concludes that this distinguishing feature makes no difference. This one was a good one.
Of course, Dershowitz ignores that Adams, having taken an oath to tell the truth in open court, testified that there was no quid pro quo — the truth of which is totally belied by Sassoon’s resignation letter. It was the quid pro quo that led Sassoon to refuse to make the motion to dismiss and then resign.
Guilt or innocence must never be based on political considerations. That’s the way they did it in Soviet Russia and Nazi Germany.
If Judge Dale Ho denies (or dismisses) the Justice Department’s Rule 48 motion to dismiss the case against Adams, either because the motion is irregular or because dismissal is not in the public interest, what happens next? The Trump Justice Department will then decide to go forward with the prosecution, or it may refuse to do so.
If the Justice Department decides to go forward, it will have to do so in good faith. It can’t appoint the most junior member of the staff to be in charge of trying an important case like this. Perhaps it will swear in the old staff that resigned and brought the indictment in the first place. To do otherwise would, to use the late Justice Antonin Scalia’s artful phrase, “tax the credulity of the credulous.”
But suppose the Justice Department declines to go forward. Then, the fat is in the fire. In that event, we have a “headless horseman,” a criminal case without a prosecutor.
So Judge Ho, like Diogenes, must go out with his lantern and find an honest prosecutor. It is not clear whether the court can appoint a non-Justice lawyer to prosecute the case. Judges are supposed to say what the law is, not prosecute criminal cases; this division of responsibility is one of the bulwarks of liberty. On this subject the case law is in unsettled. If Ho were to decide that Adams perjured himself when he swore there weas no quid pro quo, the Supreme Court has held he himself could prosecute the mayor for criminal contempt and appoint an outside lawyer to carry the banner.
But aside from the narrow area where there has been contempt before the court, the constitutional separation of powers might preclude the judge from appointing a prosecutor to pick up the fallen standard of Sassoon and the other attorneys who resigned.
Ho could use the power of his judicial office to persuade Attorney General Pam Bondi to swear in the original prosecution team as Special Assistant United States Attorneys to accomplish the desired end. Or there is case law that he could appoint outside lawyers who would be under the nominal supervision of Bondi, even though Main Justice played no active role in the prosecution.
Good quid pro quo or bad one? I was never taught in law school there was any legal distinction. We will have to watch and wait.
James D. Zirin, author and legal analyst, is a former federal prosecutor in New York’s Southern District. He is also the host of the public television talk show and podcast “Conversations with Jim Zirin.”
