Month: February 2025

Over the past nine days, the ongoing drama of the U.S. Department of Justice’s efforts to dismiss the pending criminal corruption-related prosecution of New York City Mayor Eric Adams has attracted extensive national and even international attention.  In brief, those efforts included, in rapid succession –

• A February 10 directive from Acting Deputy Attorney General Emil Bove to then-United States Attorney for the Southern District of New York Danielle Sassoon, directing that she dismiss the case without prejudice on two bases: (1) that “the timing of the charges and more recent public actions by the former U.S. Attorney responsible for initiating the case [Damian Williams] have threatened the integrity of the proceedings, including by increasing prejudicial pretrial publicity that risks impacting potential witnesses and the jury pool”; and (2) that the prosecution “has unduly restricted Mayor Adams’ ability to devote full attention and resources to the illegal immigration and violent crime that escalated under the prior Administration”;
• Sassoon’s February 12 response to Attorney General Pam Bondi, in which Sassoon opposed the demand on multiple grounds, stated that her office has “proposed a superseding indictment that would add an obstruction conspiracy count based on evidence that Adams destroyed and instructed others to destroy evidence and provide false information to the FBI”, and offered her provisional resignation;
• Bove’s February 13 reply letter to Sassoon, in which he accepted her resignation, transferred the case to the Justice Department’s Public Integrity Section, placed the Assistant United States Attorneys principally responsible for the case on “off-duty, administrative leave” pending investigations by the Attorney General’s Office and the Department’s Office of Professional Responsibility (OPR) (which investigates alleged prosecutorial misconduct), informed her that both of those offices “will also evaluate your conduct”, accused her of “pursuing a politically motivated prosecution” and “insubordination”, and added the ipse dixit that the prosecution rendered Mayor Adams “unable to communicate directly and candidly with City officials he is responsible for managing, as well as federal agencies trying to protect the public from national security threats and violent crime”;
• The resignation of multiple experienced federal prosecutors in the U.S. Attorney’s Office and the Public Integrity Section in the face of Acting Deputy Attorney General Bove’s demands that the motion be filed; and
• Acting Deputy Attorney General Bove’s and other Department attorneys’ February 14 signing of the motion to dismiss, after Bove made clear to Public Integrity Section prosecutors that they could be fired if they were unwilling to file the dismissal motion.

The motion to dismiss is now pending before U.S. District Judge Dale Ho in the Southern District. As a rule, federal judges generally have limited bases on which to deny a government motion to dismiss a criminal case.  The Department’s extraordinary and unprecedented conduct with regard to the Mayor Adams prosecution, however, raises substantial questions about whether that motion should be granted.

Various commentaries on the Department’s actions to date have criticized them as unprincipled and unethical, and even creating a “civil war” between the Department’s political leadership and career prosecutors.  But the publicly available information about the case prompts a much more substantial question: whether one or more senior officials at Justice Department headquarters (“Main Justice”, to Justice Department veterans) have been engaging in at least an endeavor to obstruct justice, if not an actual obstruction of justice, and thereby committing a federal crime.

To understand why this may be the case, it is necessary to review the general federal obstruction-of-justice offense and its essential elements.  Section 1503 of Title 18 in the United States Code prohibits, among other actions, anyone “corruptly or by threats or force . . . influenc[ing], obstruct[ing], or imped[ing], or endeavor[ing] to influence, obstruct, or impede, the due administration of justice.”  In addition, the general conspiracy offense, section 371 of Title 18, covers conspiracies to violate section 1503.

A plenitude of judicial decisions broadly defines the scope of this “omnibus clause” in section 1503.  This language “is designed, in part, to prevent a miscarriage of justice in a case pending in a federal court” (United States v. Metcalf, 435 F.2d 754, 756 (9th Cir. 1970)).  Accordingly, the offense “is all-embracing and designed to meet any corrupt conduct in an endeavor to obstruct or interfere with the due administration of justice” (United States v. Cohen, 202 F. Supp. 587, 588 (D. Conn. 1962), quoting United States v. Solow, 138 F. Supp. 812, 814 (S.D.N.Y.1956)).

Moreover, the breadth of section 1503’s omnibus clause extends to a wide range of acts.  As the law in the Second Circuit makes clear, these include not only false statements made directly to a federal court, but also concealment of information from a court that is relevant or germane to the court’s functions (see United States v.  Cohn, 452 F.2d 881, 884 (2d Cir. 1971), cert. denied, 405 U.S. 975 (1972) and United States v. Bonanno, 177 F. Supp. 106, 112-13 (S.D.N.Y. 1959) (conspiracy to violate §1503)).

As noted above, section 1503 extends not only to actual obstruction of justice but to any “endeavor” to do so.  The term “endeavor” “describes any effort or essay to do or accomplish the evil purpose that the section was enacted to prevent” (United States v. Russell, 255 U.S. 138, 143  (1921) (predecessor version of section 1503)).

Finally, a section 1503 offense requires proof that the person in question acted “corruptly.”  The term “corruptly” can simply mean “having an evil or improper purpose or intent” (see United States v. Haldeman, 559 F.2d 31, 114 n. 229 (D.C. Cir. 1976) (per curiam), cert. denied, 431 U.S. 933 and 935 (1977)), which the Supreme Court indicated includes “knowledge that his actions are likely to affect the judicial proceeding” (see United States v. Aguilar, 515 U.S. 593, 599 (1995)).

In light of these essential elements, several related sets of facts warrant consideration:

• Appearance of Coercion of a Criminal Defendant: Main Justice has moved for dismissal of a federal criminal prosecution without prejudice, while leaving open the possibility of reinstating those charges at any time.  Based on the available public information, the only logical explanation for filing for dismissal without prejudice, as opposed to dismissal with prejudice, is to maintain a continuing threat of a renewed prosecution over Mayor Adams, to ensure that he provides continuing support for the Administration’s immigration enforcement campaign.  That the Administration intends that specific objective is reflected not only in the Acting Deputy Attorney General’s memorandum and letter and the motion to dismiss, but by the statement of Tom Homan, the President’s “border czar”, that “If he [Mayor Adams] doesn’t come through,” “I’ll be back in New York City and we won’t be sitting on the couch. I’ll be in his office, up his butt saying, ‘Where the hell is the agreement we came to?'”
• Violation of Department Policy: Section 9-27.260 of the Department’s Principles of Federal Prosecution, which addresses impermissible considerations for initiating or declining federal criminal charges, explicitly states: “[F]ederal prosecutors and agents may never make a decision regarding an investigation or prosecution, or select the timing of investigative steps or criminal charges, for the purpose of affecting any election, or for the purpose of giving an advantage or disadvantage to any candidate or political party.” (Emphasis supplied)  The motion to dismiss, which Acting Deputy Attorney General Bove signed, asserts “that dismissal is necessary because of appearances of impropriety and risks of interference with the 2025 elections in New York City.”  As Sassoon’s letter pointed out, the Adams indictment was unsealed in September 2024, some nine months before the June 2025 primary election.  If anything, the dismissal of the indictment, even if without prejudice, in February 2025 would almost certainly give Mayor Adams a greater advantage in the June primary election and the subsequent general election.
• Proffering Misleading Explanation for Need for Dismissal: The government’s motion broadly asserts that dismissal without prejudice is necessary in part because of “appearances of impropriety”, citing, “among other [otherwise unspecified] things”, review of a website and a single blog post by former U.S. Attorney Willliams.  Experienced federal prosecutors, such as the Acting Deputy Attorney General, know that the government has several well-established options short of dismissal to address a defendant’s claims of prejudicial pretrial publicity.  Those include changes of venue under Rule 21 of the Federal Rules of Criminal Procedure, continuance at the government’s or the defendant’s request, and careful questioning of prospective jurors under Rule 24 of the Federal Rules of Criminal Procedure to identify possible influences from case-related publicity.  Any or all of those options would be more than adequate to address the government’s expressed concerns about pretrial publicity.  To date, Acting Deputy Attorney General Bove has offered no explanation of why these options would be insufficient to address concerns about pretrial publicity.
• Contradictory Statements by Acting Deputy Attorney General About Integrity of Prosecutors: In his February 10 directive, Acting Deputy Attorney General Bove took pains to stress that his directive “in no way calls into question the integrity and efforts of the line prosecutors responsible for the case, or your efforts in leading those prosecutors in connection with a matter you inherited.”  Only three days later, in his February 13 letter to Sassoon, he accused Sassoon of “insubordination”, characterized the prosecution as “politically motivated”, threatened her and the prosecutors principally responsible for the case with investigation by the Attorney General’s Office and OPR, and added the ambiguous but ominous statement that at the conclusion of those investigations the Attorney General will determine whether termination or some other action is appropriate.” (Emphasis supplied)

Judge Ho has now scheduled a hearing for February 19 concerning the motion to dismiss.  In setting the hearing date, Judge Ho ordered that the parties “shall be prepared to address, inter alia, the reasons for the Government’s motion, the scope and effect of Mayor Adams’s “consent[] [to the motion] in writing,” ECF No. 122 at 1, and the procedure for resolution of the motion.”

Although the government and Mayor Adams agree that dismissal without prejudice is warranted, the attorneys who will appear at that hearing may find themselves on the horns of a dilemma.  To be completely truthful about the Administration’s actual motive for moving to dismiss without prejudice – as Rule 3.3 of the New York Rules of Professional Conduct would require – risks undermining Main Justice’s professions of concern about “the integrity of the proceedings” and Mayor Adams’s ability to do his job.  But any misstatement or concealment of facts relevant to the court’s consideration of the motion can only raise further questions about the relevance of section 1503 to the case.