The Trump justice department acted within its constitutional authority to drop the prosecution of Mayor Adams. The President, through his Attorney General, has the power to determine prosecutorial priorities. Consider for example President Trump’s decision not to enforce the Federal Corrupt Practices Act (FCPA) because he believes it is bad for American business.
Whether correct or incorrect as a matter of policy, he has the authority, as head of the executive branch, to make and implement that decision. Likewise, he has the authority to prioritize the deportation of illegal aliens over the prosecution of a mayor who he believes could help him implement that policy.
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Danielle Sassoon (who once was a student researcher for me and is a friend) had the right to refuse to play a role in dropping the prosecution of Adams, who she understandably believes is guilty of serious crimes that were neutrally investigated for years before Trump assumed office. She, like any public official, has the prerogative to resign or be fired rather than agree to file a motion she believes is wrong.
In her resignation letter, Sassoon said her decision was a matter of ethics because she believed that the decision to drop the charges was part of a quid pro quo. But dropping prosecutions or reducing charges on the basis of quid pro quos is common in all prosecutorial offices. I have represented numerous criminal defendants who were offered quid pro quotes by the Southern District and other prosecutors. The most common offer is,” We will drop the charges against you, if you testify or wear a wire against the higher-up in your company or organization. “Another common quid pro quo is :”If you are willing to plead guilty, we will reduce the charges.” Indeed, it is fair to say that quid pro quos in the form of plea bargain offers are essential to the operation of that office, since the vast majority of prosecutions are resolved by quid pro quo pleas bargains.
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Nor are there constitutional differences between the kind of quid pro quo plea allegedly offered Adams and the more traditional quid pro quo plea bargains bargain offered to ordinary criminal defendants. They both involve personal benefits offered to a criminal benefit in exchange for the defendant helping the government. The fact that the help sought here involved a “quo” that is outside of the specific case— help in enforcing deportation policy— makes no constitutional difference.
There are, of course, good quid pro quos and bad ones, and Sassoon reasonably beloved this was a bad one that crossed an ethical line.
Whether the current dispute is more a question of ethics or policy, it probably could have been avoided, had the Justice Department in Washington done originally what it finally had to do: namely have Main Justice in Washington file the motion to drop the charges ,rather than trying to compel a reluctant acting US Attorney to personally ask that the charges be dropped by her. It is unusual, though not unheard of, for Main Justice to take a case over from the local US Attorney’s office.
That’s what ultimately happened when the motion to drop the prosecution was submitted by an assistant attorney general in the public integrity unit.
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Sassoon herself was only a temporary stand-in for the newly nominated permanent US Attorney in the southern district. There was no reason to put her to the choice of either acting against her principles, on the one hand, or resigning or being fired on the other. The US Attorney’s office for the Southern District of New York prides itself on its independence, and acting deputy Attorney General Bove should have anticipated pushback. Perhaps that is what he wanted: a test of the power of Main Justice to put the southern district in its place as subordinate to Main Justice.
It cannot be known for certain, whether Sassoon and the others who resigned in the wake of her resignation, would have remained on the job had that office not been required to file the motion. The letter of support for Sassoon written by several former southern district US attorneys suggests that they might very well have resigned even if Sassoon was not told to personally file the motion to dismiss. The issue for them was the independence of the office in making prosecutorial decisions based on the law and the evidence, and not being overruled on what they believe are political considerations.
The former prosecutors are correct in saying that Sassoon and the others who resigned should not be investigated for allegedly improper conduct. What they did was a matter of principle and they acted in good faith based on what they reasonably believe was the best interest of the rule of law and the proper role of the prosecutors. What I call “role morality“ assigns different ethical standards to individuals based on the particular roles they play in our legal system.
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We live in an age of zero-sum, black-and-white, right or wrong conflicts, but there are gray areas where principles and role morality clash and where reasonable people can see different sides of a complex issue. I believe that this is the situation with regard to the Adams case. So, we can praise Sassoon for her principled stance, even if we believe that the justice department had the constitutional authority to ask the court to dismiss the evidence-based prosecution of Mayor Adams.
Alan M. Dershowitz is the Felix Frankfurter Professor of Law, Emeritus at Harvard Law School, and the author most recently of War Against the Jews: How to End Hamas Barbarism, and Get Trump: The Threat to Civil Liberties, Due Process, and Our Constitutional Rule of Law. He is the Jack Roth Charitable Foundation Fellow at Gatestone Institute, and is also the host of “The Dershow” podcast.
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