The Dangerous Legacy of the Adams Prosecution
The Department of Justice’s radical revision of the rulebook on federal prosecutions
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When New York federal judge Dale Ho dismissed the federal charges against Eric Adams, the story did not end. For Adams, the case is over, but in moving for dismissal the administration advised the court that the president was prepared in the future to use criminal law enforcement as leverage, in a direct quid pro quo, to force public officials to support his policy goals. He is the elected leader of the nation; he can exercise control over the Department of Justice in directing the filing or dismissal of charges to carry out his administration’s policy agenda. According to Principal Deputy Attorney General Emil Bove, any such offer of relief from prosecution for officials who play ball on policy was “virtually unreviewable” by the courts. And this leverage could be aimed at state and local officials, like Adams, enabling the federal government to interfere with state and local governance as needed to achieve federal policy goals.
The administration filed its motion to dismiss the Adams prosecution under Rule 48(a) of the Federal Rules of Criminal Procedure, which requires “leave of the court” for any such dismissal. The government sought dismissal without prejudice, preserving the potential for continued investigation and re-charging within its discretion. It asserted two grounds for dismissal in its brief motion: 1) that the pending prosecution nine months before the November 2025 New York City mayoral election, when Adams was seeking a second term, gave the “appearance[] of impropriety” and “risk[ed] … interference” in the election, and 2) that the prosecution also interfered with the mayor’s “ability to govern,” which in turn “poses unacceptable threats to public safety, national security, and related federal immigration initiatives and policies.”
In this post, I focus on the Trump administration’s extraordinary, brazen embrace of quid pro deals with public officials who would be pressured to trade policy support for the dismissal of pending criminal charges. I conclude with general suggestions for potential reform to address this dangerous development. Any possibility of reform is concededly, by any reasonable assessment, well into the future. But on this as well as other threats to rule-of-law principles and norms, we should be prepared for the time when the reform space opens again. It rarely stays open for long.
The Trump Administration’s Embrace of Criminal Law Enforcement as Policy Leverage
The federal government wanted help from the mayor on Trump’s immigration policies; Adams had expressed his willingness to support them. The administration denied that it had engaged in an explicit quid pro quo bargain with the mayor to trade support for dismissal of the prosecution. It had simply taken that support for the administration’s immigration policy into account in deciding that the prosecution should be terminated. The pending charges, according to Bove, complicated Adams’s ability to help the administration on immigration policy in “a clear and complete way.”
In his opinion dismissing the prosecution with prejudice, Judge Ho described the government’s position as “stunning” and “unprecedented.” The court was “unaware of a single instance in which the Government dismissed a public official’s indictment because his position implicated matters of public safety, national security, or immigration.” In his oral argument, Bove agreed that it had never happened before, but no matter: The president’s decision to terminate the prosecution of Adams, or of any public official, to achieve policy goals was a “standard exercise of prosecutorial discretion.”
But in that hearing, the DOJ went much further. Bove wanted the court to understand that, had the president so chose, he could have lawfully cut a straightforward, quid pro quo deal. “I don’t concede, and I don’t think it’s correct, that even if there was a quid pro quo, there would be any issue with this motion [to dismiss the case]” (emphasis added).
This was an elaboration of the view Bove communicated in his letter accepting the resignation from the case of then-Acting U.S. Attorney Danielle Sassoon, who along with other colleagues, resisted and then resigned over his order to dismiss the prosecution. Sassoon had contended that the Constitution barred the use of criminal prosecution “to … induce or coerce [political] activity.” Bove responded that Sassoon lacked the “discretion to interpret the Constitution in a manner inconsistent with the policies of a democratically elected President and a Senate-confirmed Attorney General.” Any such “interpretation” of the Constitution was improper, an abuse of her prosecutorial discretion, if it impeded the president from effectuating the policies he was elected to pursue. In the hearing before Judge Ho, Bove restated the same basic point in defending explicit quid pro quo bargaining over criminal prosecutions as within a democratically elected president’s constitutional authority.
Bove also emphasized that the government would apply this view of the coercive use of presidential power over law enforcement in pending and future cases:
If a case, if an ongoing prosecution presents national security concerns or concerns about the president's ability to maintain an immigration policy that he was elected to implement and enforce, then … the department will absolutely consider that in connection with current cases, ongoing cases, cases that are under investigation. It's a totally appropriate consideration.
To appreciate fully the significance of this position, it is important to bear in mind that the government possesses virtually unfettered discretion to initiate an investigation or prosecution in the first instance. As Jack has written, this administration has tossed overboard long-standing norms that the Department of Justice in prior administrations has acknowledged, even if not always successfully followed, which have protected against the political abuse of law enforcement. Under Attorney General Bondi, the department “has engaged in a range of politicizing actions, including dropping the Eric Adams prosecution, withdrawing charges against and pulling back from investigations of other Trump-allied current or former officials, halting prosecution of a Trump family crypto partner, and firing or demoting career attorneys who worked on cases involving the president.” Now this same administration is construing executive power to permit the department, if it opens an investigation into a public official for political or policy purposes, to offer to terminate the case in return for cooperation with those goals.
The combination of unfettered discretion to bring charges and quid pro quo bargaining over their dismissal adds up to the potential for politicization “all the way down.” The department’s Justice Manual, which provides extensive guidance to U.S. attorneys, includes among “impermissible considerations” in making any prosecutorial decision a person's “political association, activities, or beliefs.” This provision applies with force to all prosecutions, of course, but with particular significance where that person is a public official, whether elected or appointed. The department has essentially erased this principle from the manual. It now insists that the president could charge, or not, any such official if it serves the president’s political or policy agenda—without regard to the merits of the case. In this respect, it is notable that Bove affirmed in court that the motion to dismiss the charges against Adams was not based in any way on the strength of the case against him.
Quid Pro Quo Deals and Judicial Review
Two days after the hearing, Judge Ho appointed Paul Clement, former solicitor general to President George W. Bush, as amicus curiae to present views on the government’s motion to dismiss the case. The Clement brief set out a comprehensive treatment of court authority under Rule 48(a). Clement noted that courts have held “divergent views” of their authority to review motions to dismiss prosecutions under Rule 48(a). Some have claimed the power to consider the “public interest” implicated in a prosecution and, on that basis, to deny dismissal. Others have taken a more limited view, confining their inquiry to the question of how the government action would affect the defendant’s rights. In particular, a court might be concerned with the government’s choice to dismiss only “without prejudice,” meaning that it could elect at some point to renew charges. This potential for dismissing and then recharging raises the specter of harassment.
Clement urged the court to accept the narrower view focused on the defendant’s rights and confine the decision to whether the case should be dismissed with or without prejudice. He cited the Supreme Court’s suggestion in Rinaldi v. United States (1977), the only and therefore leading case authority, that “[T]he principal object of the ‘leave of court’ requirement is apparently to protect a defendant against prosecutorial harassment[:] … charging, dismissing, and re-charging.”
Clement cited one additional basis on which a court would prudently adopt a narrower review. Any action a court might take on the broader “public interest” grounds would pit it against the government, and the judiciary would be unable to win the standoff. A court cannot force the government to prosecute and cannot draw on any existing authority to appoint a special prosecutor to pursue the case in place of an unwilling government. If it denied dismissal, the DOJ could simply sit on its hands. Eventually, the defendant could rely in seeking dismissal on the violation of his right to speedy trial. A judicial confrontation with the government over dismissal, whether with or without prejudice, would be “futile.”
Clement advised the court to grant the motion to dismiss “with prejudice” and ensure that the case ended once and for all. Clement wrote that cases involving public officials “raise distinct sensitivities.” In a case like Adams’s, where the government has sought dismissal in part to secure his support on federal immigration, the potential that the official could be re-charged at any time “could create the appearance, if not the reality, that [the official’s actions] are being driven by concerns about staying in the good graces of the federal executive, rather than the best interests of his constituents.” Clement advised the court that political abuse of law enforcement figured prominently in the history of Rule 48(a): “[T]he addition of the requirement for court approval … was motivated by a concern that prosecutors were seeking dismissals of politically well-connected defendants.”
Judge Ho’s final opinion granting the motion to dismiss, with prejudice, closely tracks Clement’s amicus arguments. He added one additional concern about the administration’s embrace of quid pro quo deals where they involve state and local officials in particular. In the case before him, Judge Ho stated, “[T]he federal government is using the pendency of a federal indictment to override the City’s laws in favor of its own policy goals.” He noted that three days after the government’s directive to dismiss the case, Adams took controversial action to override a city ordinance barring Immigration and Customs Enforcement agents from entering the Rikers Island prison facility. Judge Ho wrote that principles of federalism and political accountability would “preclude an attempt by the federal executive branch to coerce a state or local official into implementing federal policy objectives.”
Reform (in the Future)?
Three months into this administration, any discussion of reform may seem delusional. But the time will come for an accounting of all the challenges to the rule of law—both challenges that were not anticipated and others, such as those associated with Trump’s demand for complete personal and political direction of the Department of Justice, that were entirely foreseeable on the evidence of Trump 1.0 and his public statements. Jack and I made a book-length list in 2020. All such lists will evidently need much updating as the next four years grind on.
The Adams case can be added to the list, at least in this one important respect:
The case exposes uncertainties about the breadth of the courts’ authority to review government motions under Rule 48(a) to dismiss prosecutions. Those issues are complex, and as both amicus Paul Clement and Judge Ho pointed out, there are hard realities facing any attempt to enhance that review. The government does not have to prosecute when it chooses not to do so.
However, the considerations that normally would apply to limit court review under the rule are different where the federal government is prosecuting a public official. There may always have been risks of quid pro quo deals to bend a public official to the will of the government, but most likely considered off the record and behind closed doors. The risks are heightened now that the government has adopted quid pro quo dealmaking openly as a tool within what it claims to be the president’s unreviewable authority to pursue policy goals unrelated to the merits of the criminal case.
For that reason, courts and commentators might turn attention to potential changes to the rule. Both Clement and Judge Ho noted the absence of “express” or existing authority for a court to appoint a special prosecutor to act in place of an unwilling government. One question in the consideration of potential reforms is whether such authority should be available. Or if this is deemed to go too far, and if the core problem of potential harassment is adequately addressed by courts’ dismissal with prejudice, the rule could be amended to require that disposition in all cases of this kind.