I Disagree with Judge Dale Ho.

I know I'm probably a lone voice here, but I take issue with Judge Dale Ho agreeing to dismiss the charges against Eric Adams, even though he did it with prejudice.

I know that many legal experts far smarter than I have agreed that Judge Dale Ho’s decision to dismiss with prejudice the fraud and bribery charges against New York City Mayor Eric Adams is a good thing, but I’m having a hard time getting on board. And if you know me, I’m all about celebrating judicial wins and finding the bright side - but I’m not seeing it here.

Friend, former AUSA, and former DA for Westchester County Mimi Rocah wrote for MSNBC “Prosecutors who resigned rather than carry out what they saw as an unethical, improper and potentially illegal order were 100% vindicated by Judge Ho’s extensive findings.”

Jen Rubin and Andrew Weissmann said in a discussion “Today, it’s nice to see a decision where the courts, especially the district courts, have really continued…to be a functioning part of our tripartite system of checks and balances.”

There weren’t a lot of options here for Judge Ho because had he denied the motion to dismiss, he could not compel the Department of Justice to prosecute Adams, nor could he appoint a prosecutor to do so. There are three ways this could have gone:

1. Judge Ho could have taken the recommendation of the DoJ and dismissed without prejudice - allowing the Trump administration to hold potential future charges over Adams’ head like a sword of Damocles (I’m glad this didn’t happen.)

2. He could have taken the advice of the amicus curiae Paul Clement and dismissed the charges with prejudice (which is what he ultimately did in this matter.)

3. He could have denied the motion to dismiss - in which case the DoJ would have likely run out the speedy trial clock and forced a dismissal with prejudice (which is what I thought he should have done.)

I’m not a lawyer, but my opinion on this doesn’t come out of thin air. It comes - in part - from retired Judge John Gleeson. Gleeson is a retired judge who clerked for Boyce Martin on the United States Court of Appeals for the Sixth Circuit from 1980 to 1981, was an AUSA in the EDNY and famously prosecuted John Gotti, and was appointed to the District Court for the Eastern District of New York by Clinton in 1994.

He was also the amicus curiae appointed by Judge Emmet Sullivan when Bill Barr’s Department of Justice sought a dismissal of the charges against Michael Flynn. In his 83-page brief, John Gleeson wrote:

Leave of court (to dismiss the charges) should not be granted when the explanations the Government puts forth are not credible as the real reasons for its dismissal of a criminal charge.

Rule 48(a) was designed to “guard against dubious dismissals of criminal cases that would benefit powerful and well-connected defendants.”

In other words, the rule empowers courts to protect the integrity of their own proceedings from prosecutors who undertake corrupt, politically motivated dismissals.

He grounds his opinion in the history of Rule 48(a):

This plain text interpretation of Rule 48(a) is confirmed by a study of the rule’s history, which demonstrates that the “leave of court” requirement was included in Rule 48(a) to authorize judges to act in the precise circumstances presented here

Before the passage of Rule 48 in 1944, federal prosecutors enjoyed the unreviewable prerogative to enter a nolle prosequi—that is, to dismiss a pending charge. See id. At times, this power was wielded in ways that “savor[ed] altogether too much of some variety of prestige and influence (family, friends, or money) that too often enables their possessors to violate the laws with impunity; whereas persons lacking them must suffer all the penalties.”

Over time, the corrupt dismissal of criminal cases against powerful, politically connected defendants sparked a judicial backlash.

That same year, the Supreme Court appointed an Advisory Committee to create rules of criminal procedure. Leading members of the Committee pushed for a judicial check on the corrupt, politically motivated dismissal of criminal charges; this was the fundamental reason given for limiting prosecutorial power to dismiss cases.

In other words, cases like the one against Eric Adams, and the DoJ’s bid to dismiss the charges, are the reason rule 48(a) exists! To argue that separation of powers binds the court from refusing to dismiss charges is totally antithetical to why the rule was set up in the first place - which was to balance the separation of powers by giving the court the ability to provide oversight of an executive branch that seeks to dismiss charges for corrupt reasons. To say that separation of powers forbids me to exercise a rule that was set up to ensure separation of powers is bonkers to me.

Gleeson addressed the separation of powers argument in his Flynn brief:

[Separation of powers] interests are imperiled if the Executive Branch seeks the dismissal of criminal charges for corrupt, politically motivated reasons that undermine confidence in the integrity of judicial process, or if it seeks dismissal as part of a campaign to harass criminal defendants by filing, dismissing, and re-filing charges against them. Rule 48(a) rests on the premise that judges may constitutionally guard against these forms of abuse in their own courts.

Rule 48(a) thus “turns what was once solely the prerogative of the executive into a shared responsibility between the executive and judicial branches of government.” Faced with “clear evidence” that prosecutors have failed to perform their official duties in good faith, courts may pierce the presumption of regularity and deny leave of court under Rule 48(a) if doing so is necessary to vindicate fundamental judicial interests.

In his ruling, Judge Ho concedes that the DoJ’s reasons for dismissal were pretextual, writing:

In fact, the timing of this case is entirely consistent with prior public corruption prosecutions. All of this suggests that the “appearances of impropriety” rationale is not just thin, but pretextual.

So then why dismiss the charges? Judge Ho concludes that while a pretextual rationale can’t satisfy the government’s obligation to set forth the “real grounds upon which the application is based,” the DOJ did actually put forward at least one rationale that seems to be a real purpose of the Rule 48(a) Motion: It believes dismissal will facilitate the administration’s “immigration initiatives and policies.”

But that rationale is only to support his decision to dismiss the charges with prejudice as opposed to without. It doesn’t really satisfy the overarching reality that the dismissal is entirely improper. Judge Ho’s justification for that is simply that the case will eventually end up being dismissed anyhow because the DoJ will refuse to prosecute and the speedy trial clock will expire - forcing a dismissal.

So why not do that? Why not force the Department of Justice to sit on its hands and file a motion? Judge Ho says it’s because that delay would put the case perilously close to the June 24, 2025 New York City mayoral primary election. So what? The DoJ policy doesn’t say “Don’t have a trial within 60 days of an election.” It says not to take overt investigatory steps. Judge Ho even points this out in his ruling while arguing that the DoJ’s argument for timing of the charges is stupid:

While some other Justice Department sources have described an unwritten norm that, regardless of purpose, prosecutions should not be brought against candidates for office within sixty days of an election due to the risk of affecting the election, this case was brought in September 2024, approximately nine months before the June 2025 New York City mayoral primary.

Judge Ho concludes that it’s in the public interest not to have this drag out, but I disagree. I think that it’s crucial to the public interest that a case not be dismissed as a favor to the politically powerful and well-connected. Yes, it would ultimately be dismissed anyhow, but it should be dismissed at the peril of the inherent power of the court. There’s already enough denigration of the judicial branch from this administration. Judge Ho actually concedes that my preferred scenario is precisely what happened the one time in the district that a judge denied a dismissal on rule 48(a) grounds:

That precise scenario played out in Nederlandsche, the one case in this District in which a court denied a Rule 48(a) motion on public interest grounds. There, the government—after denial of its motion to dismiss—simply chose not to further prosecute the defendant. Around one year later, the defendant moved to dismiss the indictment on, essentially, speedy trial grounds. The court reluctantly granted the defendant’s motion to dismiss, stating that it did so “despite its continuing conviction that the interests of justice ha[d] been here ill-served.”

Finally, with regard to the further scrutiny of what happened here between the Department of Justice and Eric Adams, Judge Ho writes:

Here, however, the Court concludes that no such further inquiry is necessary. While some questions remain for those seeking a complete picture of how the decision to dismiss unfolded (e.g., what exactly was said at the January 31 meeting between SDNY, DOJ, and Adams’s counsel, and what USAO-SDNY said in its follow-up letter to DOJ), the record already makes clear that a least one of the rationales the Department has advanced is in fact a “real” basis for the Motion: DOJ has determined that dismissing this case will advance “federal immigration initiatives and policies.” No further factual development is necessary to arrive at that conclusion. And delving deeper would not change the ultimate outcome here, because the Court— even if it were so inclined—could not force the Government to prosecute this case by denying the Motion.

Sure, delving deeper would not change the outcome, but it would put on the record exactly what went down in those meetings where Emil Bove tried to eat the notes. If that’s not in the public interest, I do not know what is.

Anyhow, I know I’m probably alone in my take here, but I’m with Judge Gleeson on this one, and I think the DoJ should have had to put on its accountability pants and expired the speedy trial clock on its own. Further, I believe that a full hearing of what happened in the corrupt deal-making process should have been aired out in court in the service of public interest. I know that smarter people may disagree with me, but I felt the need to speak my mind on this one.

With all due respect.

~AG

You can read Gleeson’s amicus in the Flynn case here, and you can read Judge Dale Ho’s dismissal here.