Last month, over the objections of multiple career prosecutors, President Donald Trump’s Justice Department sought to dismiss the criminal case against New York Mayor Eric Adams without prejudice, meaning the Justice Department would retain the option to charge Adams again with the same crimes and on the same facts.
Within days, seven prosecutors in New York and Washington resigned in protest. And as of Monday afternoon, at least three others — all of whom were part of the core case team in Manhattan — have been placed on administrative leave by the Justice Department.
Unsurprisingly, U.S. District Judge Dale Ho, who is overseeing the case, has some questions, notably including the scope of his own authority to reject the government’s request and the breadth of the inquiry he can conduct.
None of these documents are now, much less were ever intended to be, public.
And on Friday night, former Solicitor General Paul Clement, who was appointed by Ho to provide independent advice on whether and how to dismiss the Adams case, suggested Ho has limited latitude. While allowing that Ho can consider evidence outside the Justice Department’s motion, Clement’s brief nonetheless concludes Ho ultimately has two choices: accede to the Justice Department’s “deeply troubling” desire to preserve the prospect of re-indictment or dismiss the case with prejudice, even when some public information “suggests the decision to dismiss the indictment was undertaken in bad faith.”
Ho has tentatively scheduled a hearing in the Adams matter for Friday. And if he heeds Clement’s advice, the case could be over as early as that evening.
But that doesn’t mean the story will end there. On the contrary, the brief that the Justice Department filed — signed only by two of Trump’s former criminal defense lawyers-turned-senior DOJ leaders, Deputy Attorney General Todd Blanche and his deputy, Emil Bove — quotes from a handful of emails, drafts and text messages sent or received by the core case team and/or by Danielle Sassoon, then the acting U.S. attorney for the Southern District of New York, to support the Justice Department’s narrative of why the case must be dismissed.
Specifically, Blanche and Bove cite these internal communications and documents to show career prosecutors had serious doubts about the legitimacy of the Adams indictment and concerns about the political motives of their then-boss, former U.S. Attorney Damian Williams. And in so doing, they have impugned the integrity and credibility of each of them, disparaging two in particular as “aggressive” and “careerist” while warning Ho that “any additional inquiry will not reflect well on SDNY.”
You might be wondering: Is it normal for Justice Department leaders to attack current and former employees publicly? No. Was it foreseeable Justice Department would do so with cherry-picked sentences from their own pre- and post-indictment electronic footprints? Not before last week.
First, none of these documents are now, much less were ever intended to be, public. (As of publication, they remain under seal while The New York Times and others press for their release.) In fact, it is axiomatic that internal communications about Justice Department investigations and prosecutions are confidential and, barring limited circumstances, never revealed to criminal defendants, much less to us, the general public.
As the Justice Manual — often described by former prosecutors as the bible of federal prosecution — explains, “DOJ personnel should presume that non-public, sensitive information obtained in connection with work is protected from disclosure, except as needed to fulfill official duties of DOJ personnel, and as allowed by court order, statutory or regulatory prescription, or case law and rules governing criminal and civil discovery. Other than as necessary to fulfill DOJ official duties, disclosure of such information to anyone, including to family members, friends, or even colleagues, is prohibited and could lead to disciplinary action.”
At least two important constituencies could harness that waiver in search of a broader truth — and most likely will.
Second, it’s true that Blanche, as the deputy attorney general, may be entitled to determine what revelations of otherwise confidential case materials or communications are or are not “needed to fulfill [his or others’] official duties.” But it doesn’t change the fact that with one or two exceptions (e.g., a joking text about one former prosecutor’s judicial nomination prospects and a draft press release), the documents Blanche and Bove quote might ordinarily be covered by certain privileges and protections, including the deliberative process privilege, which shields prosecutorial deliberations from public view. And therefore, even accepting Blanche was empowered to release the communications and drafts quoted in the brief, in doing so, he also might have waived the Justice Department’s privilege as to a raft of other drafts, emails, texts and additional documents created from July, months before Adams was indicted, to February, when Bove, facing a wave of internal refusal, first sought to dismiss the case. (The Justice Department did not respond to MSNBC’s request for comment.)
But don’t take my word for it. You might recall that during the first Trump administration, when senior Justice Department leadership intervened in the sentencing recommendation for longtime Trump ally Roger Stone, all four members of the trial team withdrew from the case and one resigned from the Justice Department entirely, only to be roundly criticized by then-Attorney General William Barr. When one of those prosecutors, Aaron Zelinsky, appeared months later before the House Judiciary Committee, he submitted a draft written statement to the Justice Department for review. In response, a senior Justice Department official instructed Zelinsky in a letter that his internal discussions about the Stone sentencing submissions were “pre-decisional and covered by privilege,” but that official also insisted, “The Department does not waive its important confidentiality interests in prosecutorial deliberations simply because someone alleges that a particular decision was political in nature.” Some even have suggested communications between and among Justice Department lawyers are attorney-client privileged, even though there is no discernible, named “client” beyond the federal government itself. The Stone prosecutor who resigned, Jonathan Kravis, bemoaned the fact that the others couldn’t defend themselves from Barr’s broadsides because Justice Department employees can’t talk to the media “about criminal cases without high-level approval.” Why? Because each has an ethical obligation “to protect the confidences of their client,” aka the United States. Of course, no one implicated in the Adams mess is arguing waiver, at least yet. But at least two important constituencies could harness that waiver in search of a broader truth — and most likely will. First, there are the former and current prosecutors involved in the Adams case, who most likely lack any access to their Justice Department phones, laptops and/or paper records and who are, according to Bove, under investigation by two Justice Department offices. One would expect securing proof of their good faith and professionalism will matter to each of them. Second, journalists frequently ask for — and seldom get — internal communications through Freedom of Information Act requests, often because there is a clear FOIA exemption for materials covered by the deliberative process privilege. But where that privilege has been waived to some degree? There’s a story to be unearthed, no matter when and how the Eric Adams case itself ends.
Lisa Rubin is MS NOW's senior legal reporter and a former litigator.
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