A Lone Bove in Federal Court

It’s a few minutes before 2 o’clock in the afternoon on Wednesday, Feb. 19, in courtroom 318 at the Thurgood Marshall Courthouse, where Judge Dale E. Ho is set to hold a hearing on the Justice Department’s motion to dismiss a federal corruption case against the mayor of New York City. 

In the packed gallery, spectators turn to watch as the defendant, Mayor Eric Adams, enters the courtroom and nonchalantly strolls down the center aisle, both hands buried in the pockets of his crisp blue suit.  When he arrives at the defense table, he seats himself between his attorneys, Alex Spiro and William Burck. 

On the other side of the room, a man named Emil Bove is seated alone at the counsel’s table. It’s a sight that seemed unremarkable just a few weeks ago, when a lone Bove sat at the counsel’s table in New York state court during the criminal sentencing of his client, Donald Trump. Back then, Trump was still a private citizen and Bove was still his personal defense counsel. Now, Trump is the President of the United States, Bove is the acting deputy attorney general, and the administration’s extraordinary decision to abandon the criminal case against Adams has roiled the ranks of the Justice Department and caused a mass resignation of at least seven career officials and one acting U.S. attorney. 

Bove, for his part, played a key role in provoking the present turmoil within the Justice Department. On Feb. 10, he directed the Acting U.S. Attorney for the Southern District of New York, Danielle Sassoon, to seek dismissal of Adams’s charges without prejudice. In a memo to Sassoon, Bove acknowledged that the decision to dismiss the charges was not based on an assessment of the legal merits of the case. Instead, he claimed the timing of the charges raised an “appearance of impropriety” and threatened to interfere with New York’s upcoming mayoral election, in which Adams is a candidate. Additionally, Bove wrote that the case was restricting the mayor’s ability to assist with enforcement of Trump’s immigration policies. 

Rather than obey Bove’s directive, Sassoon and at least six other prosecutors resigned from the Justice Department.  Before she resigned, Sassoon sent a letter to Attorney General Pam Bondi, in which she suggested that the deal with Adams amounted to a quid pro quo. Another top prosecutor, Hagan Scotten, insinuated in his resignation letter that dismissal of the case was being used by the government “to induce an elected official to support its policy objectives.” 

Last week, Bove personally signed the Justice Department’s motion to dismiss Adams’ charges, which requires “leave of court” under Rule 48 of the Federal Rules of Criminal Procedure. Though Adams consented to the motion, two groups of litigants moved to file “friend of the court” briefs, arguing that the judge should deny the motion to dismiss or, at a minimum, conduct further factual inquiry into the basis for dismissal. Judge Ho, for his part, scheduled today’s hearing to determine how to proceed. 

All of which is why, as the clock ticks toward the scheduled 2 p.m. start time, Bove’s solitary presence at the prosecution table is both conspicuous and telling.

“Is he really going to do this alone?” I hear someone in the gallery wonder aloud. 

He is, as it turns out. 

At 2 p.m., a court officer shouts “All rise!” as Judge Ho enters the courtroom and takes a seat behind the bench. 

“I called this conference because I have a few questions,” he begins.  Before turning to those questions, however, Judge Ho acknowledges that he has “very little discretion” to deny a Rule 48 motion to which both parties have consented. Still, he continues, district courts have some “limited” authority. Otherwise, the language in Rule 48 requiring “leave of court” would serve no purpose. For that reason, Judge Ho thinks it’s appropriate to ask some questions about the motion in order to “properly discharge” his duty.

The judge kicks off by inquiring about the nature and scope of Adams’s consent to the motion. Though Adams filed a letter of written consent on the docket, Judge Ho wants to ensure that his consent was given freely and voluntarily.  To that end, he explains that he intends to begin by asking Adams a set of standard questions that he asks when determining whether a criminal defendant has given free and voluntary consent.  The first set of questions, in other words, aren’t specific to Adams or the circumstances surrounding this motion to dismiss. 

Adams agrees to answer these questions under oath, and a court officer swears him in.

Then Judge Ho rattles off a series of questions: Is your mind clear today? Do you understand what’s happening? 

Yes and yes, Adams replies. 

Are you under the care of a psychiatrist? Have you recently been hospitalized for addiction and is there anything about that treatment that would interfere with your ability to understand what’s happening in these proceedings today? Have you taken any drugs in the past two days that would interfere with your participation in these proceedings? 

No and no and no, Adams responds. 

Based on these responses, Judge Ho finds that Mayor Adams is “fully competent” to give “knowing and voluntary consent.”

Next, the judge probes whether Adams read and understood the motion to dismiss filed by the Justice Department. 

Adams replies that his attorneys explained the motion to him and that he “fully” understood it at the time. He authorized them to consent to it on his behalf, he says. 

Do you understand that you are consenting to dismissal “without prejudice”? 

Adams says he understands that, too.  

Before continuing further with his examination of Adams, Judge Ho turns to Bove. He wants to know more about the effect of dismissing the charges “without prejudice.” Can these charges be brought again? he asks. 

It would be within the Justice Department’s discretion to bring the charges again, Bove acknowledges. 

Judge Ho wonders aloud whether there are “any limits” to the Department’s ability to re-indict Adams later on. In reply, Bove mentions some “standard” limitations on the Justice Department’s discretion. For example, he says, there could be time limits related to the statute of limitations or the Speedy Trial Act. The Justice Department may or may not revisit the case at another time, he adds, but there aren’t any plans for that at this time. 

Judge Ho follows up by asking whether the Justice Department is contemplating any additional “investigative” steps.

No, Bove replies. 

Turning back to Adams, the judge asks whether he understands all of this. 

“I have not committed a crime. I don’t see them bringing it back. I’m not afraid of that,” the mayor replies. 

At this, Judge Ho reminds Adams that he can consult with his lawyer at any point during this hearing. 

“I appreciate that because I failed my law class,” Adams quips in response. 

Judge Ho presses on: No one told you that the government will not indict you in the future? 

Adams confirms that no one told him that. 

You understand that you can ask the court to dismiss the case with prejudice? the judge asks. And if the court were to dismiss with prejudice, that would mean that the government cannot re-indict you on these charges? 

Adams says he understands. 

Judge Ho continues: Are there any other agreements, written or otherwise, that you’ve entered into with the government?

No, the mayor replies. 

Did the government promise anything to induce you to agree to its motion? Were any threats made to induce you? 

No and no, Adams asserts. 

Redirecting his attention to Bove, Judge Ho asks about the basis for the motion itself. Can you give a high-altitude overview of the grounds for dismissal articulated in the motion? 

Bove, in reply, explains that there are two key reasons set forth in the motion. The first reason, articulated in paragraph five of the motion, implicates an Executive Order issued by Trump last month. The order, titled “Ending the Weaponization of the Federal Government,” directs the Justice Department and other federal agencies to “take appropriate action to correct past misconduct by the Federal Government related to the weaponization of law enforcement.” Pursuant to this order, Bove says he determined that this case should not proceed because there is an “appearance of impropriety” surrounding the charges. And that determination, Bove tells Judge Ho, is “essentially unreviewable” by this court. 

Bove further contends that the second reason articulated in the motion is similarly “unreviewable” given that it implicates the president’s Article II powers.  As explained in paragraph 6 of the motion, the idea is that the prosecution interferes with Adams’s ability to govern, which in turn poses “unacceptable” threats to public safety, national security, and federal immigration policy. 

Judge Ho focuses, first, on the “appearance of impropriety” rationale set forth in paragraph 5 of the government’s motion. Are you saying that the prosecution was actually motivated by improper purposes? 

I used the phrase “appearance” of impropriety because I believe that’s sufficient to warrant dismissal, Bove replies. The actual purpose of the prosecution is the subject of “several ongoing investigations by the Department,” he continues. But I used the term “appearance” because that is why I felt it was appropriate to dismiss the case, he reiterates. 

Pivoting next to the “ability to govern” rationale, Judge Ho asks about Bove’s claim in the motion that Adams lost his security clearance as a result of the prosecution, which has purportedly hindered his ability to protect the city from public safety and national security threats. 

Did Adams lose his security clearance as a result of this case? Judge Ho asks. 

Bove says that defense counsel can speak to that. 

In turn, Spiro pipes up: That’s right, Mayor Adams lost his clearance because of this case, he says. As a result, Adams isn’t fully able to deal with or interact with federal partners in the normal course of his duties, he claims.

Judge Ho queries whether Adams is in the process of re-obtaining his security clearance. How quickly can that be restored, he asks, and does it hinge on the resolution of this motion? 

Bove, in reply, admits that the president has authority to grant security clearance to Adams.  But separate from that, he insists, these proceedings hinder his ability to communicate with federal authorities. 

Judge Ho clarifies: So it’s possible that Mayor Adams’s security clearance could be restored independent of the resolution of this motion? 

I believe so, Bove says, but the rationale articulated in paragraph 6 of the government’s motion is not limited to the security clearance issue. 

Moving on, Judge Ho wonders aloud whether the Department’s “inability to govern” rationale would apply to other public figures with significant public safety responsibilities.  What about the New York City police commissioner, for example? Or what about someone like the mayor of a city near the border? 

Bove confirms that the rationale could apply to other public figures. In every case in which an ongoing prosecution presents national security concerns, then we will have to consider that, he tells the judge. And those considerations are “totally appropriate,” he assets. 

Next, Judge Ho turns to the question of the amicus briefs.  He notes that he hasn’t decided whether to accept the briefs, which were filed by Common Cause and a group of former U.S. attorneys, respectively. Putting that aside for the moment, he points out that one of the briefs includes the Feb. 10 memo Bove sent to Sassoon, in which he directed her to dismiss the prosecution.  In resolving the motion, should I consider this memo? Judge Ho asks. 

No, Bove replies. The record the court ought to consider is the government’s motion to dismiss. That’s it.  What’s more, he reminds the judge that the court has very limited discretion to deny the motion.  It essentially boils down to the question of whether the motion was made in bad faith and I’m here as an officer of the court telling you that I’m making these representations in good faith, he says. And I’m entitled to a presumption of regularity, he adds.

Further, Bove stresses that the record developed during today’s hearing “conclusively” establishes that there was no “quid pro quo.” 

“But I don’t concede that, even if there was a quid pro quo, that there would be an issue with this motion,” he says. 

Turning back to Spiro, Judge Ho asks about a sentence he included in his Feb. 18 response to the amici filings.  The judge points to the last two sentences of Spiro’s letter, which read: 

“What we never said or suggested to anyone was that Mayor Adams would do X in exchange for Y, and no one said or suggested to us that they would do Y in exchange for X. We are prepared to confirm these points under oath in sworn declarations.”

What is this a reference to? the judge asks. 

When someone says something false, I’m going to respond, Spiro says. 

Judge Ho follows up: The letter says “we are prepared to confirm these points under oath in sworn declarations.” Who is “we”? 

That refers to my colleague and I, Spiro clarifies.  He seems to be referring to his co-counsel, Burck. And I’m happy to raise my right hand right now and swear to it, Spiro adds. 

Finally, Judge Ho returns to the question of whether he ought to consider the briefs filed by amici. What are the parties' positions on the proposed briefs? he inquires. 

Bove, for his part, replies that he doesn’t oppose consideration of the brief filed by Common Cause. He does, however, object to the submission of the proposed brief filed on behalf of a group of former U.S. attorneys.  Spiro, meanwhile, announces that he takes no position on the Common Cause motion. And, like Bove, he opposes the proposed brief of the former U.S. attorneys. He also objects to any “further involvement” of amici beyond the filing of their respective “friend of the court” briefs. 

Judge Ho is ready to wrap up. I’m going to take everything you said under “careful consideration,” he says. It’s not in anyone’s interest for this to “drag on,” he acknowledges. But in order to exercise my discretion “properly,” I’m not going to “shoot from the hip” by ruling from the bench, he says. He announces that he’ll take the matter under advisement and rule in due course. 

And with that, the hearing is done.  The mayor and his attorneys hang back as spectators stream out of the gallery. 

Bove walks out of the courtroom as he entered: alone.