3 ways Eric Adams can still be prosecuted

Is Adams off the hook? Not so fast. There are multiple avenues for Adams to be prosecuted -- especially if elected officials and prosecutors show some courage.

Mainstream media reports on the dirty deal between Donald Trump and Eric Adams instantly treated Adams getting off the hook as a foregone conclusion.

But they’re wrong.

There are at least three clear ways that Adams could (and should) still be prosecuted.

1 - The court denies DOJ’s attempt to dismiss the case, as the dismissal requires “leave of court” and there is clear evidence of bribery and obstruction of justice.

This path would in some ways be the most satisfying and just, but it is also in many ways the most uncertain.

First, some background. Rule 48(a) of the Federal Rules of Criminal Procedure allows the government to dismiss a criminal case it has brought, but it may only do so with “leave of court.” In other words, the judge has to co-sign the government’s dismissal.

The court has authority here — but there is a legal debate as to precisely when and why the court may exercise that authority. Some decisions have held that 48(a) only applies to prevent the government from harassing a defendant by charging, dismissing, and then charging them again. Other decisions have held that 48(a) also applies when the dismissal would not be in the public interest — a much broader grant of discretion to the court.

There is a strong argument here that 48(a) ought to apply, regardless of which school of thought one subscribes to in this legal debate.

First, the government’s attempt to dismiss Adams “without prejudice” — i.e. leaving the door open for them to bring the case again in the future — very clearly appears to be a way for Trump to hold a sword of Damocles over Adams, forcing him to continue doing whatever the administration wants him to do. It’s leverage. And this kind of prosecutorial extortion is prohibited by 48(a).

Second, even some of the most vocal proponents of a narrow reading of 48(a) — that it does not vest a court with power to second-guess prosecutorial discretion — still note that 48(a) may apply in “extremely limited circumstances in extraordinary cases,” including in cases of “bribery” or “bad faith.”¹ It may be only one case in 10,000 that warrants an application of 48(a)’s “leave of court” discretion, but the case of Eric Adams is exactly that case.

All that said, it is a gray area in the law, and it is far from certain that the court in the Adams case will decide to exercise its Rule 48(a) authority to deny the government’s motion to dismiss. Or it is possible that the court will decide that the dismissal without prejudice is too fraught given the accusations of a quid pro quo from the government’s very own prosecutors who have now resigned — and the court will rule that the dismissal can be granted “with prejudice” (i.e. on a final permanent basis) or not at all.

But even if the dismissal is granted, there are two other ways Adams may still be brought to justice.

2 - The Manhattan DA’s office files its own charges under New York state law.

Even if the Trump-captured DOJ lets Adams off the hook — and the federal court feels that it lacks the authority to intervene — Adams is still in legal jeopardy.

The bribery charges are all based on alleged actions that occurred in New York, and while one might be excused for thinking that bribery is legal in New York, it is, in fact, not.

Adams’s actions appear to fall under “bribe receiving in the first degree” under New York’s penal code, as Adams received a benefit in excess of $100,000 — carrying a prison sentence of 5 to 25 years.

Yet the question is not whether Adams broke New York state law — he did, by every appearance. The question is whether Manhattan District Attorney Alvin Bragg (yes, that Alvin Bragg) will actually bother to hold a powerful figure accountable in any real way, after failing to do so in the case of Trump (who walked away virtually unscathed despite being convicted of 34 felony counts) and just one week ago in the case of Steve Bannon (who received a sweetheart plea deal that allowed him to evade any prison time at all for a $15 million criminal fraud scheme). And to be clear, Bragg is not alone in this cowardice and timidity — his predecessor, Cy Vance, had a slam-dunk criminal fraud case against Donald Trump Jr. and Ivanka Trump and mysteriously pulled the plug on it right after meeting with one of Trump’s lawyers and right before that same lawyer raised almost $50,000 for Vance’s re-election campaign.

The system is rigged — in favor of the powerful and connected.

I will honestly be shocked if Bragg does anything here, though it is possible that Bragg will intervene because the politics appear favorable.² One never knows. Yet there is one more way things could go down.

Oh the irony. And the one person who might have enough fortitude to engage in “combating crime” is standing right next to that accused criminal.

3 - NY Governor Kathy Hochul names NY AG Letitia James as special prosecutor to bring the case against Adams.

This is, on the surface, the least likely outcome — namely because it does not seem to be on the table currently at all.

But Hochul has the power to do this, and it would be quite appropriate in this situation. The extraordinary case of the mayor of New York City being prosecuted merits an extraordinary prosecution — and while the Manhattan DA is technically separate from City Hall, there is a much stronger argument that the state AG operates on a totally separate plane from City politics and has the requisite independence and insulation to bring a successful prosecution.

There is also, of course, the two offices’ vastly different recent track records in their abilities (and willingness) to bring cases against high-profile targets.

If Hochul wishes to be truly serious about cleaning up the gross corruption of the Adams mayoralty and New York city and state politics overall, then she should empower James and her office to take up the Adams case.

Or is yet another criminal defendant going to escape justice just because he’s a VIP? Are we just going to accept the idea that elites are immune from any kind of accountability?

1. This comes from a dissent from Judge Neomi Rao of the D.C. Circuit in one of the decisions in Michael Flynn case (which would take a whole other article to explain). Suffice it to say for now, Judge Rao was appointed by Trump and is one of the most right-leaning judges on the entire federal bench — and issued a blistering critique of the purpose of Rule 48(a), effectively arguing that prosecutors’ decisions to dismiss cases should almost never be second-guessed by judges. And yet even in Judge Rao’s view, an extraordinary case of bribery and bad faith would qualify as a case where a judge could deny a government dismissal under Rule 48(a).

2. More likely though? Bragg is up for re-election this year — and he is not facing any serious challengers as of yet — so he will probably play it safe and try to make as few big moves as possible.