Judge Ho Dismisses – With Prejudice – the Criminal Case Against NYC Mayor Eric Adams
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.Â
** 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 t
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