Normally, when the government asks a judge to dismiss criminal charges against a defendant, the judge will happily do so. This does not occur frequently, but occasionally, the government will reevaluate the strength of its own case and conclude it cannot prove the case beyond a reasonable doubt and to a moral certainty.

What happens when the government believes it can meet that standard, but for reasons having nothing to do with the strength of its case, it seeks a dismissal? Can the Department of Justice legally, and can its lawyers ethically, hold the prosecution of the Mayor of New York City in abeyance – almost as a sword of Damocles – so as to coerce his cooperation with federal immigration officials?

Stated differently, can the DoJ, which sought and obtained an indictment of Mayor Eric Adams for bribery, use its own bribery in order to influence the mayor’s judgment on policy decisions?

Here is the backstory.

In September 2024, Adams was indicted by a federal grand jury in Manhattan for bribery and other charges. He pleaded not guilty and has forcefully denied the allegations against him. The case commenced in the first Trump administration when Adams was Brooklyn Borough President.

When the U.S. Attorney for the Southern District of New York, who obtained the indictment of the mayor in Manhattan, resigned after the election of Donald Trump as President, Trump appointed a stellar line prosecutor, Danielle Sassoon, as Acting U.S. Attorney, pending Senate confirmation of Trump’s nominee to become U.S. Attorney. As an aside, the Southern District of New York is the oldest, most prestigious and heretofore most independent of the regional federal prosecutorial offices.

Upon the promotion of Sassoon, Adams’ lawyers approached her with a bargain; not a plea bargain, but a bargain: If Adams changes his position on the use of city personnel and assets to assist ICE in its immigration enforcement, would the government drop the charges against him? When Sassoon and her team rejected this offer out of hand, Adams’ lawyers went to her superiors in the DoJ who found the offer appealing and generally agreed to its consummation.

The deal, never reduced to writing but constructable from the letters and emails written by those formerly involved in the prosecution, called for the dismissal of the indictment against the mayor without prejudice. It is the “without prejudice” that is the ethical and legal stumbling block here, as that type of dismissal permits the feds to take the case off the shelf at any time in the future and actively regenerate its prosecution.

The stated reason for the dismissal without prejudice is not a recognition of weaknesses in the government’s case, but rather the government’s need for the mayor’s full contemporaneous cooperation in its enforcement of federal immigration laws, a cooperation that might be lacking were he to be put on trial this spring.

That’s hogwash. It is Orwellian newspeak for a federal scheme to control the mayor.

Is this scheme itself a bribe?

It is bitterly ironic that the bribery case against the mayor might end with a bribe. A bribe is the delivery of something of value to a public official in return for the exercise of the levers of government power by that official to comply with the wishes of whomever set the delivery in motion.