When the Supreme Court’s Republican-appointed majority curbed the use of federal bribery law against state and local officials this past term, Justice Ketanji Brown Jackson’s dissent called the “absurd and atextual reading of the statute” one that “only today’s Court could love.”
Eric Adams might love it, too.
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On Monday, New York City’s first indicted sitting mayor moved to dismiss the federal bribery charge against him, citing that recent Supreme Court precedent, called Snyder v. United States.
“Just three months ago, the Supreme Court rebuked the Justice Department for adopting an ‘unfathomable’ interpretation of the federal-program bribery statute,” the Democratic mayor’s lawyers wrote in their trial court motion, citing the Snyder case.
“Yet here goes the Department again,” they argued, surmising that:
It appears that after years of casting about for something, anything, to support a federal charge against New York City Mayor Eric Adams, prosecutors had settled on a theory that depended on the Department’s longstanding view that Section 666 [the bribery law at issue] criminalizes gratuities, including gifts meant to curry favor with governmental officials but not linked to any specific question or matter. When the Supreme Court rejected that interpretation in June, prosecutors simply added a few vague allegations and called their theory bribery — “a far more serious offense than gratuities” [a quote from the Snyder opinion].
Arguing that “the government’s makeover doesn’t work,” Adams’ lawyers wrote:
The indictment does not allege that Mayor Adams agreed to perform any official act at the time that he received a benefit. Rather, it alleges only that while serving as Brooklyn Borough President –not Mayor, or even Mayor-elect — he agreed generally to assist with the ‘operation’ or ‘regulation’ of a Turkish Consulate building in Manhattan, where he had no authority whatsoever, in exchange for travel benefits (e.g., upgrades to vacant business-class seats and a car ride to a restaurant).
They concluded the 25-page filing by writing:
In short, the bribery count in the indictment suffers from the same fundamental legal problems that have long plagued the Justice Department’s aggressive targeting of prominent public officials: a sweeping view of federal statutes that criminalizes routine conduct and replaces measured ethics rules with the blunt force of federal criminal law. The consequence is a lack of fair notice to defendants and the kind of highly selective enforcement on display here.
Now, this is the type of argument that the Supreme Court has embraced in recent years — not just in the Snyder case but also in a string of appeals dating back at least to the 2016 ruling in favor of former Virginia Gov. Bob McDonnell that narrowed corruption-related prosecutions. It’s too early to know whether Adams, who has pleaded not guilty, will be able to successfully harness that judicial skepticism to get out of his indictment, which we’re all still digesting. But however heavy-handed the defense argument sounds, it’s the sort of claim that Adams’ lawyers would be foolish not to make, given the state of the law and the Supreme Court. The Justice Department will get to respond to Adams’ motion, and federal prosecutors will likely disagree with both the defendant’s understanding of the law and how it applies to the facts of his case. (Adams’ motion only concerns the bribery allegation, and we should expect him to separately challenge the other charges in the indictment, including those related to allegedly illegal campaign contribution dealings.) Indeed, prosecutors probably aren’t too surprised at Adams’ argument. At least they shouldn’t be. In strategizing the case, they likely will have considered the charges against the backdrop of how they would fare on an inevitable appeal if there’s a conviction. But however damning the allegations against the mayor may seem, the justices seemingly stand ready to save white-collar defendants from charges that might possibly be seen as criminalizing politics, however shady that politics is. The Deadline: Legal Newsletter returns Oct. 4. Subscribe for expert analysis on the top legal stories of the week, including updates from the new Supreme Court term and developments in Donald Trump’s legal cases.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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