Paul Clement has made a sound recommendation that Judge Dale Ho should adopt.
Paul Clement, the amicus appointed by Manhattan federal judge Dale Ho to counsel him on the Justice Department’s application to dismiss the corruption case against New York City Mayor Eric Adams, has appropriately advised the court that the case should be dismissed. The dismissal, however, should be with prejudice — meaning that the Trump Justice Department would not be able to revive the charges — as opposed to the without prejudice term proposed by DOJ official Emil Bove.
We predicted this outcome (see my posts here and here and NR’s editorial here).
Clement is one of the nation’s top appellate lawyers. His memorandum of law, submitted on Friday to Judge Ho of the Southern District of New York (SDNY), explains that the federal dismissal standard, Federal Rule of Criminal Procedure 48(a), alters the pre-1940s Anglo-American practice that permitted prosecutors to dismiss cases post-indictment without leave of the court. But this alteration does not change the constitutional separation of powers: Prosecutorial power is vested solely in the president; the judiciary has no authority to prosecute, to order the executive branch to prosecute, or to appoint a third party to prosecute.
What Rule 48(a) does empower the court to do is protect the due process rights of the defendant by ensuring that the Justice Department is not using dismissal abusively — e.g., leaving open the possibility of renewing the charges later in order to exhaust the defendant’s resources or make the allegations more difficult to defend against.
A judge can do that by ruling that if the government goes through with the dismissal, it must be with prejudice. Such an outcome comports with two similar exercises of executive discretion: the pardon, which carries double-jeopardy protection and forecloses future prosecution, and the decision to drop a case before an indictment has been returned, a traditional exercise of prosecutorial discretion in which courts have no involvement.
As Clement points out — echoing the complaints of the SDNY prosecutors who resigned over the order from Bove and Attorney General Pam Bondi to dismiss the case without prejudice — such dismissals that leave open revival of the charges are particularly inappropriate in prosecutions of public officials:
There is an inherent risk that once an indictment has been procured, the prospect of reindictment could create the appearance, if not the reality, that the actions of a public official are being driven by concerns about staying in the good graces of the federal executive, rather than the best interests of his constituents.
Clement adds that “dismissal without prejudice avoids those concerns and promotes another important separation-of-powers virtue — namely, accountability.” The president’s decision to dismiss a viable corruption case against the mayor of the nation’s largest city is controversial. If he is going to make that decision, he should be prepared to bear the political weight of it, not obfuscate over whether he has actually made a final decision.
As I’ve theorized, I believe that Judge Ho will adopt Paul Clement’s recommendation, and that the Trump Justice Department will agree to make the dismissal with prejudice — with the DOJ potentially agreeing with Mayor Adams’s claims that the SDNY prosecutors engaged in misconduct by causing their objections to the dismissal to be publicly aired.
To repeat, I believe Adams’s misconduct claims are frivolous, as is Bove’s claim that the case against Adams was brought due to “political motivation” rather than solid evidence of bribery and abuse of power. As a former longtime SDNY prosecutor, I believe that in honorably resigning rather than carrying out an order based on what they justifiably believed were false premises, the prosecutors acted in the best traditions of the SDNY and the Justice Department.