OPINION:
When the government asks a judge to dismiss criminal charges against a defendant, the judge is usually happy to do so. This does not occur frequently, but occasionally, the government will reevaluate the strength of its case and conclude it cannot prove the case beyond a reasonable doubt and to a moral certainty.
What happens when the government believes it can meet that standard but seeks dismissal for reasons that have nothing to do with the strength of its case? Can the Justice Department legally, and can its lawyers ethically, hold the prosecution of the mayor of New York City in abeyance — almost as a sword of Damocles — to coerce his cooperation with federal immigration officials?
Stated differently, can the Justice Department, which sought and obtained an indictment of Mayor Eric Adams on bribery charges, use its own bribery to influence the mayor’s judgment on policy decisions?
Here is the backstory.
In September, a federal grand jury in Manhattan indicted Mr. Adams on bribery and other charges. He pleaded not guilty and forcefully denied the allegations against him. The case commenced in the first Trump administration when Mr. Adams was Brooklyn borough president.
The U.S. attorney for the Southern District of New York, who obtained the indictment of the mayor in Manhattan, resigned after Donald Trump was elected president. Mr. Trump appointed a stellar line prosecutor, Danielle Sassoon, as acting U.S. attorney, pending Senate confirmation of Mr. Trump’s nominee to become U.S. attorney. As an aside, the Southern District of New York is the oldest, most prestigious and heretofore most independent of the regional federal prosecutorial offices.
Upon the promotion of Ms. Sassoon, Mr. Adams’ attorneys approached her with a bargain — not a plea bargain, but a bargain: If Mr. Adams changed his position on using city personnel and assets to assist with immigration enforcement, would the government drop the charges against him? Ms. Sassoon and her team rejected this offer out of hand. Mr. Adams’ attorneys went to her superiors in the Justice Department, who found the offer appealing and generally agreed to its consummation.
The deal was never reduced to writing but was constructible from the letters and emails written by those formerly involved in the prosecution, who called for dismissing the indictment against the mayor without prejudice. The “without prejudice” is the ethical and legal stumbling block here, as that type of dismissal permits the feds to take the case off the shelf at any time and actively regenerate its prosecution.
The stated reason for the dismissal without prejudice is not a recognition of weaknesses in the government’s case but rather the government’s need for the mayor’s full contemporaneous cooperation in its enforcement of federal immigration laws, cooperation that might be lacking were he to be put on trial this spring.
That’s hogwash. It is Orwellian newspeak for a federal scheme to control the mayor.
Is this scheme itself a bribe?
It is bitterly ironic that the bribery case against the mayor might end with a bribe. A bribe is the delivery of something of value to a public official in return for that official’s exercise of the levers of government power to comply with the wishes of whoever set the delivery into motion.
I have often argued, unsuccessfully, that plea bargains that require testimony against another defendant constitute bribery.
Why can prosecutors deliver something of value to a witness — a lesser punishment than what the law prescribes and a judge likely would administer — to tailor the witness’ testimony and defense counsel cannot? Why doesn’t the prosecutorial delivery of something of value to a witness constitute witness tampering?
If you accept my argument about government lawbreaking, you can understand my animus about what the Justice Department has done here. According to Ms. Sassoon, it has offered Mr. Adams something of value — the dismissal of federal bribery charges, albeit without prejudice — in return for exercising the levers of government power in cooperation with U.S. Immigration and Customs Enforcement.
Is the mayor already required by law to cooperate with ICE? He is not. He cannot lawfully impede ICE’s work any more than anyone else can, but he is not required to assist it. He alone decides how the levers of government power in New York City shall be exercised vis-a-vis the feds. The feds cannot command city officials to aid in their work.
What should the court do with this motion to dismiss without prejudice? The court should first order all the attorneys who touched this case — including the attorney general and her deputy — to testify under oath. The court needs to know whether the Justice Department is attempting to use it as a political tool. If it blithely grants the motion, that will be the inevitable conclusion.
As we have all seen, using law enforcement for political purposes often produces political results. Jurors are not dumb. Suppose they sense a prosecution or judicial order lacks moral propriety, fidelity to the law and consistency with the Constitution. In that case, their judgments about right and wrong will be little more than a reflection of their political preferences.
On the other hand, the court cannot force the feds to prosecute the mayor. It can expose their perfidy and the heroism of Ms. Sassoon and her six colleagues, who resigned rather than participate in this tawdry scheme. Then, the court can dismiss the case with prejudice, thereby upending the scheme and removing the sword from over the mayor’s head.
I don’t know whether Mr. Adams is innocent or guilty, but it is better for him to walk free than to permit the system to bribe him with impunity.
• To learn more about Judge Andrew Napolitano, visit https://JudgeNap.com.
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