Paul Clement has filed his court-appointed friend-of-the-court brief in the Eric Adams case, recommending that Judge Ho dismiss the case—but with prejudice, not without prejudice. From the brief:
The government’s own recent filings reflect a belief that this prosecution was initiated in bad faith. See Dkt.122 ¶5; see also Dkts.125-1, 125-2. Other information that has become public casts doubt on that claim and suggests the decision to dismiss the indictment was undertaken in bad faith. See, e.g., Dkts.150-3, 150-8. It is almost certainly beyond the judicial ken to definitively resolve that intramural dispute among executive-branch prosecutors. It is also unnecessary. Under either view, there is little justification for preserving the possibility of re-indictment by dismissing without prejudice. While the “salient issue” for the court concerns the decision to terminate, not initiate, the prosecution, Rinaldi, 434 U.S. at 30, if political considerations improperly influenced the initial decision to seek the defendant’s indictment, then dismissal with prejudice would definitively eliminate that taint. And if improper considerations tainted the decision to seek dismissal, then there is a fortiori every reason to protect the defendant from the threat of re-indictment.
Three additional, closely related factors support dismissal with prejudice as the appropriate remedy here. First, the fact that this case involves a currently serving elected official raises distinct concerns that are eliminated by a dismissal with prejudice but exacerbated by a without-prejudice dismissal. Prosecutions of incumbent public officials are among the Justice Department’s most sensitive undertakings and raise inevitable suspicions of political motivations or improper leverage over the official’s discharge of his duties to constituents. Even the appearance that the prospect of re-indictment would cause public officials to be more attendant to the executive branch than to constituents is deeply troubling and raises serious accountability concerns. A dismissal without prejudice fuels those concerns by expressly preserving the possibility of re-indictment.
Second, dismissal with prejudice more closely resembles the options the executive can achieve unilaterally, while dismissal without prejudice leaves the accused subject to re-indictment at the executive’s discretion. Nothing a court can do under Rule 48 can prevent the President from issuing a pardon that ends the prosecution and typically precludes further jeopardy for the offense (and even a conditional pardon must make any conditions explicit). Similarly, the unreviewable executive decision to refrain from prosecution leaves the individual’s liberty untouched. Dismissal without prejudice, by contrast, leaves a once-indicted defendant in a uniquely vulnerable position.
Third, dismissal with prejudice best accords with the principal office of Rule 48(a) in particular and the separations of powers more generally—namely, the promotion of individual liberty. The prospect of the court ordering the prosecution to proceed runs directly counter to the court’s usual liberty-preserving role in a criminal trial. Insisting on dismissal with prejudice, by contrast, preserves individual liberty while eliminating the problematic incentives and appearance issues occasioned by a without-prejudice dismissal of an incumbent public official.
