Independent legal expert Paul Clement argued that nothing authorizes a judge to force prosecutors “to continue a prosecution against its will, or appoint a private party to take it over.” Clement said there are two options: Either dismiss the case permanently, or dismiss without prejudice, which means the DOJ could refile charges at a later date. NBC New York’s Jonathan Dienst reports.
An attorney appointed by the judge overseeing the criminal case against NYC Mayor Eric Adams recommended the case not only be dismissed, but the judge should do so with prejudice — which would end the prosecution entirely.
In court paperwork filed Friday evening, Paul Clement said that after reviewing the facts and relevant legal precedent which guide the court in how it handles the Justice Department’s request to dismiss the case against Adams without prejudice, there was “ample reason” to dismiss the prosecution without allowing the DOJ to refile them after the 2025 mayoral election.
Clement argued that allowing the opportunity to have charges refiled would create "a prospect that hangs like the proverbial Sword of Damocles over the accused.
Watch NBC 4 free wherever you are
WATCH HERE
"The fact that this case involves a currently serving elected official raises distinct concerns that are eliminated by a dismissal with prejudice but exacerbated by a without-prejudice dismissal," the written submission stated.
Get Tri-state area news delivered to your inbox with NBC New York's News Headlines newsletter.
SIGN UP Clement wrote that by dismissing the case with prejudice, those concerns are no longer fueled.
Ultimately, it will be up to Judge Dale Ho to determine what action he takes with respect to the dismissal.
Clement, who was solicitor general under President George W. Bush, was appointed in February to present arguments on the government’s request. He was appointed after Acting Deputy U.S. Attorney General Emil Bove defended the request at a hearing, saying they came too close to Adams’ reelection campaign and would distract the mayor from assisting the Trump administration’s law-and-order priorities.
Bove has said the charges could be reinstated after the election if the new permanent U.S. attorney decides it is appropriate.
Lawyers for Adams subsequently asked for the charges to be dismissed “with prejudice,” meaning they could not be refiled. Clement declined to address Adams’ motion to dismiss with prejudice, and the judge hasn't yet ruled on that request.
After the court brief was submitted, Adams' attorney Alex Spiro said "the first-of-its-kind airline upgrade corruption case is now over." He later released a lengthier statement, saying "when it takes ‘gymnastics’ — in the words of the prosecutors who brought this meritless case — to find a crime to pin on Mayor Adams, we should all be worried about our rights.
"We have said all along this was a political hit job masquerading as a prosecution — the prosecutors own words now reveal they thought the decision to prosecute this case likely was politically motivated," said Spiro. "The prosecutors were playing games with people’s lives. Game over.“
As the mayor and City Hall voiced "vindication" Friday night, a source told NBC New York, President Donald Trump's Justice Department took the opportunity to slam its former prosecutors who resigned in protest. In a motion filed after Clement's recommendation was submitted, the DOJ once again said it wanted the case to be dismissed but with the option to bring the case back after the mayoral election.
In the filing, top Justice Department officials like Bove and United States Deputy Attorney General Todd Blanche went after the Southern District of New York (SDNY), accusing former prosecutors there of weaponization.
They pointed to an article written by the former U.S. Attorney Damien Williams, who brought the initial charges against Adams. After leaving office, Williams wrote an article about the general state of corruption in New York. The DOJ also pointed to a text from former Assistant U.S. Attorney Hagen Scotten, who allegedly wrote the Adams prosecution team should distance themselves from Williams because he "obviously has political ambitions, and I think suggesting we doubt that just costs us credibility."
Adams was indicted in September and accused of accepting over $100,000 in illegal campaign contributions and travel perks from a Turkish official and others seeking to buy influence while he was Brooklyn borough president. He has pleaded not guilty and insisted he is innocent.
Ho said he wanted all parties and Clement to address the legal standard for dismissing charges, whether a court may consider materials beyond the motion itself and under what circumstances additional procedural steps and further inquiry was necessary.
He also said he wants to know when dismissal without the ability to reinstate charges is appropriate. After setting a Friday deadline to submit written arguments, Ho said oral arguments, if necessary, could take place a week later.
Bove initially directed then-interim U.S. Attorney Danielle Sassoon to request dismissal, but she refused, telling Attorney General Pam Bondi in a Feb. 12 letter as she offered to resign that she could not “agree to seek a dismissal driven by improper considerations.”
She said the indictment was brought nine months before New York's June Democratic mayoral primary, consistent with longstanding Justice Department policy regarding election-year sensitivities, and the threat of possibly refiling the charges amounted to “using the criminal process to control the behavior of a political figure.”
Besides Sassoon, whose resignation was accepted by Bove the day after her letter, six prosecutors, including five high-ranking ones at the Justice Department, resigned before Bove made the dismissal request himself, along with two other Washington prosecutors. Scotten was one of those who left in protest, saying in his resignation that anyone who followed Bove's order to dismiss is "a fool or a coward."
The DOJ also took shots at Sassoon in their filing after she wrote she believed there was a possible dirty deal between Trump's Justice Department and Adams' lawyers to drop the case. The court filing stated Sassoon wrote in an internal message that she was disappointed in Williams' "self-serving actions after his departure."
Scotten and Williams did not immediately return requests for comment. David Kelley, an attorney speaking for Sassoon and Scotten, said they have no comment. A spokesperson for the SDNY declined to comment.
In his recommendation to Ho, Clement observed that the Justice Department’s move to end the case “precipitated a series of resignations and unusual public disclosures concerning internal deliberations about the case and the decision to seek dismissal."
“Suffice it to say that those materials raised material questions concerning both the initial decision to pursue the indictment and the subsequent decision to seek dismissal,” he wrote.
Larry Neumeister and Michael Sisak of The Associated Press contributed to this report.
