Judge Dale Ho Appoints an Amicus Curiae to Probe DoJ Motion to Dismiss Eric Adams' Case

Today, a federal judge issued an order appointing Paul Clement to oppose the dismissal of the charges against the embattled New York City mayor.

In what I consider a big win for justice, Biden appointed judge Dale Ho has appointed a “friend of the court” to provide a counterpoint to the DoJ and Mayor Eric Adams as they are on the same side. And he cited the Mike Flynn case to do it. You may recall when Bill Barr ordered prosecutors to dismiss the federal case against Mike Flynn, the judge appointed retired judge John Gleeson to provide an adversarial brief. Gleeson wrote a scathing 82-page brief arguing against dismissal, but before a ruling could be reached, Trump stepped in and pardoned Flynn.

In the Flynn case, however, the DoJ was arguing to dismiss the charges with prejudice. In the Eric Adams case, the DoJ wants to dismiss the charges without prejudice, and Eric Adams has consented to that. Since there’s no one to argue against them, Judge Dale Ho has appointed Paul Clement to provide arguments as the adversary.

Both the DoJ and Eric Adams’ lawyers are arguing that there was no quid pro quo - meaning that Adams did not agree to support President Trump’s immigration policies in exchange for leniency. But Danielle Sassoon - a former Scalia clerk who recently resigned when asked to dismiss the case by Emil Bove - wrote in her resignation letter that Bove and Adams had reached a quid pro quo agreement in both a meeting she participated in, and in a memo sent to her ordering her to file a motion to dismiss the charges.

Emil Bove argued in a hearing this past Wednesday that the memo shouldn’t be taken into consideration by the judge. But in his order appointing Paul Clement as amicus curiae, the Judge asked Clement to address the following:

1) The legal standard for leave to dismiss an indictment under Rule 48(a);

2) Whether, and to what extent, a court may consider materials other than the Rule 48(a) motion itself;

3) Under what circumstances, if any, additional procedural steps and/or further inquiry would be appropriate before resolving a Rule 48(a) motion;

4) Under what circumstances, if leave is granted, dismissal should be with or without prejudice;

5) If leave were denied under Rule 48(a), what practical consequences would follow, including whether dismissal would nevertheless be appropriate or necessary under other rules or legal principles (e.g., for “unnecessary delay” under Rule 48(b) or under speedy trial principles, see United States v. N.V. Nederlandsche Combinatie Voor Chemische Industrie, 453 F. Supp. 462, 463 (S.D.N.Y. 1978)); and

6) Any other issues the parties or amicus consider relevant to the Court’s resolution of the Government’s motion.

Notice #3. Bove doesn’t want his memo to be considered, but the judge wants the amicus curiae to address whether and to what extent the judge may consider materials other than the motion itself. I’m certain that Bove desperately wants to court to ignore his memo, and that meeting he attended with Danielle Sassoon and Adams’ lawyers. Sassoon said in her letter that Bove collected the notes taken during that meeting. I hope Clement advises the judge to ask for those notes as well.

Bove argued during the hearing this week that he was acting in good faith. Yeah sure, as long as you don’t take anything else besides the motion to dismiss into consideration.

Regarding Clement: Professor of law at the university of Texas Lee Kavorsky reminds us “For those unfamiliar, Paul Clement probably has more credibility with the conservative wing of the Supreme Court than *any other litigator alive.*”

Adam Klasfeld points out: Emil Bove scorned two lawyers for one of the proposed amici — Mark Pomerantz and Carey Dunne — as offering "partisan noise" because of their association with the Trump probe. Paul Clement, a conservative star lawyer, can't be accused of that.

David Noll says: smart play to line up appellate counsel for when this goes up.

Sean Marotta said: I haven't seen a cross-party amicus appointment like this since (checks notes) Paul Clement was appointed to argue for the constitutionality of the CFPB's structure.

I for one am glad that Judge Dale Ho refused to rubber stamp this corrupt deal between Adams and the DoJ. I’m not certain the judge will deny the DoJ motion - and he may dismiss the case, but with prejudice - but it’s refreshing to see that he’s committed to getting to the bottom of this while also resolving it quickly.

You can read his order here.

~AG