Prof. Ryan Snyder on the Eric Adams Case
There have been a lot of posts recently about the Department of Justice’s treatment of the Eric Adams prosecution. I wanted to pass along this additional perspective I received from Professor Ryan Snyder of the University of Missouri, based on his recent article Trading Nonenforcement:
If There Was A Quid Pro Quo in the Eric Adams Case, It’s Unconstitutional
Ryan Snyder
Last week, according to acting U.S. Attorney Danielle Sassoon, the Trump Justice Department made a deal with New York City Mayor Eric Adams: help enforce federal immigration law, and we’ll drop the public-corruption case against you. People have rightly criticized that trade as politically motivated, as a weaponization of the justice system, and as a blow to the rule of law.
But those aren’t the only problems with the deal: it’s also unconstitutional. The President, and the executive-branch officers who assist him, have a duty to “take Care that the Laws be faithfully executed,” U.S. Const. art. II, § 3, and to respect the separation of powers. Nonenforcement trades like this one—where the executive branch promises not to enforce the law against someone who has promised to help achieve unrelated goals—violate that duty.
(Obviously, there is a factual dispute about whether a quid pro quo occurred. I personally find Sassoon’s account persuasive, but people can make up their own minds on that point. For purposes of this post, I will assume that Sassoon’s account is correct.)
As I’ve explained in prior work, nonenforcement trades allow the executive branch to effectively impose binding rules on an individual or group without Congress’s authorization. To achieve that result, the executive uses nonenforcement as a bargaining chip. First, the executive offers not to enforce the law against an individual in exchange for the individual’s promise to do something that the executive wants but the law doesn’t require. Second, the executive makes a threat: if the individual fails to uphold their end of the bargain, the executive will reverse course and enforce the law. If the individual accepts the offer—and they often do—the resulting trade effectively changes the law on the ground without amending the law on the books.
According to Sassoon, that’s precisely what happened here. On January 31, Adams’s counsel met with Deputy Attorney General Emil Bove and “repeatedly urged what amounted to a quid pro quo, indicating that Adams would be in a position to assist with the [Justice] Department’s enforcement priorities only if the indictment were dismissed.” Ten days later, Bove told Sassoon to drop the case against Adams because it had “unduly restricted [his] ability to devote full attention and resources to … illegal immigration.” But Bove told Sassoon to dismiss the case “without prejudice,” which would allow the Department to resurrect the case in the future. That’s a nonenforcement trade: the Department promised not to enforce the public-corruption laws against Adams, Adams promised to help enforce federal immigration law, and if
Article from Reason.com
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