Why a Quid Pro Quo in the Eric Adams Affair Would Violate the Constitution: | Vikram David Amar | Verdict

The decision by the Trump administration’s Department of Justice (DOJ) to seek dismissal of federal-crime corruption charges against New York Mayor Eric Adams (with the option to refile charges if needed at a later time) has caused quite a stir, and raises a host of extremely important legal and ethical questions. There is no doubt that the DOJ enjoys a great deal of discretion to decline to prosecute (or discontinue prosecution of) people who may be guilty of crimes. After all, realistically no government can (or necessarily should) try to prosecute all wrongdoers. But here, as elsewhere in our constitutional system, the motivations of the government matter a great deal. For example, I think there would be broad agreement that it would be wrong and unconstitutional for the DOJ to decline to prosecute persons who have committed crimes against blacks when the government is prosecuting similar criminals who have victimized whites. But race discrimination is not the only constitutionally impermissible motive, as the Adams case may help illustrate.

Actual motive is often hard to deduce; government officials are nearly always savvy enough to assert innocent reasons to explain their actions. In the Adams matter, Acting Deputy Attorney General Emil Bove initially offered two explanations: (1) the Adams prosecution had itself been improperly politicized and was an example of illicit “weaponization” of the legal system; and (2) the prosecution was interfering with Adams’ ability to perform important work he needs to complete as Mayor of NYC, including work (alongside the Trump administration) to address immigration and crime issues. Each of these explanations, if genuine, could be a legitimate reason not to prosecute. If someone is singled out as a prosecution target not because of his criminal behavior but because of his political viewpoints, First Amendment values would be severely compromised. And, as Bill Clinton argued (powerfully albeit unsuccessfully) in Clinton v. Jones, the pendency of major personal litigation (civil or criminal) against an occupant of high office can definitely distract him and make it hard for him to effectively do his day job of serving the people.

But the sincerity of both of these alleged motivations by Bove (as well as that of a third explanation he later offered—that the interpretation of federal criminal law under which Adams was charged was overly broad) has been seriously questioned. As law professor Dan Richman wrote in the New York Times, the first claim (of politicization of the prosecution) was powerfully addressed in (and, Richman says, “demolished” by) the letter penned by Danielle Sassoon, interim U.S. Attorney in the Southern District in New York, who resigned (as did many of her colleagues) because she couldn’t in good conscience follow Bove’s directives. Richman characterizes the second justification—freeing up Adams to do his important work as mayor—as a “barely concealed suggestion that a dismissal would provide leverage over Mr. Adams and ensure his cooperation in [the Trump] administration’s efforts to deport undocumented immigrants.” Numerous other press accounts adduce some evidence of such a “quid pro quo,” in which the dismissal of charges was offered to Adams in exchange for his willingness to do the Trump administration’s bidding, especially in the immigration realm.

I don’t have all the detailed evidence I would need to declare with complete confidence that all of Bove’s proffered justifications are pretextual, but if they are—if there was a quid pro quo—is that a problem? Hagan Scotten, one of Ms. Sassoon’s assistant U.S. Attorneys who also resigned for the reasons she did, certainly thought so. He observed loftily: “No system of ordered liberty can allow the government to use the carrot of dismissing charges, or the stick of threatening to bring them again, to induce an elected official to support its policy directives.” Many people share this intuition, but why, precisely, would a quid pro quo in this setting be so out of bounds? After all, as some observers have pointed out, federal prosecutors use the prospect of dropping prosecutions or reducing charges all the time in order to induce a defendant to help the feds accomplish objectives that federal decisionmakers deem to be of higher importance than punishing the defendant—objectives such as nailing a larger number of criminals or criminals higher up the chain, or locating the proceeds of wrongdoing so that restitution can be offered to victims of crime, and so forth. If these decisions, and the deals or quid pro quos they result in, by federal prosecutors to balance competing executive branch policies are ok (and most everyone agrees they are), why would it be unacceptable for the DOJ to decide that enforcing federal immigration laws is a higher priority than enforcing the federal laws that Adams is alleged to have violated?

The key difference is that, unlike the Adams episode, the examples offered above involve putting pressure on individuals to take private actions that will promote policy priorities within the federal executive branch; pressure placed on individuals to induce them to discharge their public responsibilities outside the federal executive branch in particular ways risks corrupting our system of democratic representation. For example, if the DOJ were to use the leverage of a possible criminal prosecution to pressure a member of Congress to vote in favor of a bill supported by the President, when the Congressperson and her constituents would otherwise oppose the bill, that would surely constitute an improper invasion of the legislative sphere by the executive branch in violation of federal separation of powers. Mr. Adams is not, of course, a member of Congress, but he is an important policymaking official at the state/local level, and the federal government’s putting pressure on him to discharge his public duties in particular ways risks corrupting the policy decisions of the State and City of New York, thus running afoul of core federalism considerations.

As a constitutional law casebook (not the one I co-author but one as to which I have kibbitzed) puts things:

[S]tate [and local] governments are designed to be constitutionally independent from the federal government in certain ways, in part so they may stand as competing political power centers and rallying points for opponents of the central regime. [The federal government] may not treat state [policymakers] as puppets’ such [policymakers] are supposed to be autonomous watchdogs, not wholly subservient lapdogs. If [the feds] could tell a state it must [under pain of punishment to the state] that it must pass certain bills, then [they] could in principle control the entire agenda of a state. . . . leaving it no independence or time to devise its own agenda as a counterweight to [the federal government].

This reasoning is, I think, the (best) explanation for the Court’s so-called anti-commandeering line of cases, New York v. United States and Printz v. United States. In New York in 1992, the Supreme Court ruled that the federal government could not command, on pain of monetary liability, a state to enact laws regulating (according to federal policy preferences) radioactive waste that was generated within the state’s borders. A few years later, in Printz, the Court extended that principle to prevent the federal government from commanding local law-enforcement officers to use their executive authority to implement a federal gun-control law. (Some analysts, including me, have doubts about extending the principle of New York to lower-level non-policymaking executive officers in state and local government, but governors and mayors of large cities, who help set the policy tone within a state, have a stronger claim to be free from federal commandeering than do the local sheriffs involved in Printz.)

At first blush, these cases would seem to cast into doubt the permissibility of federal pressure exerted against Adams to get him to aid in federal policies. (And that is true whether or not anyone has standing to try to challenge DOJ actions in court.) To be sure, in New York the federal government was coercing state policymakers to do federal bidding by imposing potentially ruinous liability on state government itself. Is the Adams case different insofar as the leverage the feds (again, assuming a quid pro quo) are deploying is being applied to Adams’s individual liberty and property (insofar as the federal crimes he was charged with carry potential prison sentences and fines)? It does indeed make the Adams case different—it makes it even more problematic! After all, one of the major rationales the Court discussed in New York (and Printz) was the importance of preserving lines of democratic responsibility and accountability; if states were doing federal bidding not out of choice but because of undue pressure, then voters wouldn’t know whom to blame. I myself tend to think the accountability arguments in New York and Printz were overblown—after all, the feds can threaten states with loss of money or federal preemption if they don’t play ball, and those two devices also make it hard for voters to know whom to blame—and that the best explanation for Printz is the one I identified above about a state’s inherent freedom to choose. But whatever one thinks of the accountability arguments in New York, where state government monetary assets were at stake, the accountability problem in quid pro quo situations involving particular state officials/federal criminal defendants is undeniable. After all, making Adams choose between protecting the policy preferences of the constituents of New York City, on one hand, and his own liberty and property on the other hand, completely destroys the proper lines of responsibility that are needed for our democracy, and our federalism, to function.

An underdiscussed case from the Supreme Court two years prior to and in some respects a forerunner to New York, Spallone v. United States, illustrates just that. In Spallone, a federal district judge had imposed a remedial order on a different city in New York State, Yonkers, to redress unlawful housing discrimination. After a lot of appellate litigation, the parties (as the syllabus to the case puts things) “agreed to a consent decree [that set] forth certain actions which the city would take to implement the remedial order, including the adoption, within 90 days, of a legislative package known as the Affordable Housing Ordinance.” When the City Council, made up of a mayor and six councilmembers, refused to adopt the ordinance agreed to in the consent decree, the district court entered an order requiring the council to exercise its power to enact the ordinance, and providing that failure to do so would result in contempt citations and daily fines and imprisonment for recalcitrant councilmembers (that is, those who would not vote yes on the ordinance).

The Supreme Court reversed, as remedially inappropriate, the district judge’s imposition of fines and imprisonment on the individual councilmembers, saying that personal liability of government officials (as distinguished from municipal liability) was particularly problematic:

Sanctions directed against the city for failure to take actions such as required by the consent decree coerce the city legislators and, of course, restrict the freedom of those legislators to act in accordance with their current view of the city’s best interests. But we believe there are significant differences between the two types of fines. The imposition of sanctions on individual legislators is designed to cause them to vote, not with a view to the interest of their constituents or of the city, but with a view solely to their own personal interests. . . . [M]onetary sanctions against [a councilmember] individually would motivate him to vote to enact the ordinance simply because he did not want to be out of pocket financially. Such fines thus encourage legislators, in effect, to declare that they favor an ordinance not in order to avoid bankrupting the city for which they legislate, but in order to avoid bankrupting themselves. . . . This sort of individual sanction effects a much greater perversion of the normal legislative process than does the imposition of sanctions on the city for the failure of these same legislators to enact an ordinance (emphasis added.)

If it “perver[ts]. . . the legislative process” for the federal government to impose pressure on the individual liberty and property of city lawmakers in New York State in a setting (such as Spallone) where such policymakers have no legitimate right not to cooperate with federal directives (since in Spallone the Court did not question whether the Affordable Housing Ordinance was a necessary and proper remedy for adjudicated violations of federal laws, and one that the City had agreed to), then a fortiori it perverts federalism and democracy to impose pressure on a city policymaker (such as Adams) to force him to cooperate with federal directives (on immigration and other matters) where there is nothing unlawful about his or his constituents’ policy preferences and their resulting desire not to affirmatively assist the federal government.