I admit it: I’ve been avoiding this large, stinky elephant in the ethics room because I have nothing good to say about any side of the controversy.

It’s all very depressing. The organization I belong to consisting of just about every legal ethics teacher, lawyer and consultant in the country immediately showed (again) how Trump Deranged and biased the membership is. After the resignation letter of February 12 from then S.D.N.Y. U.S Attorney Sassoon to U.S.AG Pam Bondi refusing to carry out the DOJ’s directive that she move to dismiss the then pending corruption indictment against NYC Mayor Eric Adams (Quote: “It is a breathtaking and dangerous precedent to reward Adams’s opportunistic and shifting commitments on immigration and other policy matters with dismissal of a criminal indictment….Such an exchange…violates common sense beliefs in the equal administration of justice, the [DOJ’s] Justice Manual [for federal prosecutors], and the Rules  of Professional Conduct.”), the listserv was immediately awash with comments like this one: “Once the rule of law cease, so does democracy. A client has the right to instruct an attorney; the attorney may seek to be relieved if the client’s directive is offensive. But what do we do when a “client”, or anyone, seeks to end democracy?”

Riiiight: not continuing with what looked a lot like a politically-motivated prosecution of Adams by the Biden Administration threatens democracy.

When Adams was indicted in September, the “appearance of impropriety” was in play. Many commented on how he was suddenly the target of a Biden Justice Dept. prosecution shortly after he started backing away from the Democrats’ (unethical and insane) pro-illegal immigration stance and making hostile statements about what “migrants” were doing to his city. Looking at the indictment, “The Manhattan Contrarian,” aka Francis Menton, who has covered the case extensively, concluded, 1) that the Biden Justice Department under Merrick Garner was so politicized that it did not deserve the benefit of the doubt, 2) that the evidence for the indictment was “shockingly thin,” and 3) “At this point, it is a safe bet that anything the DOJ/FBI is doing in the political sphere is corrupt. Adams may well also be a little corrupt, but nothing remotely at their level.”

In other words, as I interpret it, Adams probably engaged in illegal activity, but if he hadn’t been seen as a traitor to the cause, the Biden Justice Department would have let him skate. Yecchh.

Then, this month, acting Deputy Attorney General Emil Bove instructed the SDNY to dismiss the Adams indictment, prompting a Sassoon’s letter of resignation. She is a staunch conservative, so her high dudgeon was taken as motivated by principle rather politics. Refreshing, no? Thus even conservative commentators viewed the Bove order as unethical. The Wall Street Journal wrote, “The real story speaks well of the prosecutors but sends a rotten message to any lawyer who might want to join the Trump Administration.” The Free Press was shocked: “The scope and nature of the interventions of the Trump Justice Department are shocking. . . .” The Volokh Conspiracy at Reason called it “the odious and reprehensible Eric Adams deal.” Ed Whalen of the National Review wrote, “In an act of courage and integrity, Danielle Sassoon, Donald Trump’s own hand-picked interim United States Attorney for the Southern District of New York, resigned yesterday. . . .”

As The Manhattan Contrarian and others like law professor Josh Blackman (in three posts at the Volokh Conspiracy here, here, and here) took pains to point out, there is nothing unusual or inherently sinister about prosecutors deciding not to prosecute, nor for different prosecutors to differ in their views on what prosecutions are in the public interest. Moreover, the nation, of which a President is the elected representative, is the Justice Department’s client. The client has every right to decide what is in its own best interests. Blackman: “Sassoon and her colleagues defend the traditional notion that “independent” prosecutors have the power to define what is in the public good. They can define when public officials abuse their power, and can punish those actions with criminal sanctions. . . . President Trump, through Bove, articulate[s] a different perspective. The President, as head of the executive branch, can make his own determination of what is in the public good, and determine when public officials are abusing their power. Trump, perhaps more than any living person, is uniquely situated to make this sort of judgment.”

You know what that last sentence means: the Biden Justice Department decided that it was in the nation’s best interests to lock up the greatest threat to its own power and interests, Donald Trump.

The Manhattan Contrarian has additions to Blackman’s arguments, among them:

• “Where did the federal DOJ get the idea that its mission includes policing political corruption among state and local officeholders? That certainly is not among the enumerated powers of the federal government to be found in the Constitution….Why is DOJ so concerned if Alvin Bragg can’t be bothered? How is it that nobody in the federal DOJ even gives a moment’s thought to whether it is appropriate to use federal power against a co-sovereign official on a relatively minor allegation of corruption. Why should this not be left to the local authorities?”

• “Ms. Sassoon asserts the proposition that the Adams charges came up through a completely fair and a-political process. (“[T]he charges in this case were recommended or approved by four experienced career prosecutors, the Chiefs of the SDNY Public Corruption Unit, and career prosecutors at the Public Integrity Section of the Justice Department.”). …The fact remains that if Adams was acting as a Democratic Party/Biden Administration team player, the charges likely would never have gone anywhere. Clearly, somebody high up made a decision at some point that these charges were sufficiently important to warrant assigning four career prosecutors to investigate and prepare charges. If Adams had been in favor with the right people, those people never would have been assigned, and charges would never happen. And if he had been a team player, any charges that did get off the ground could still have been quietly scuttled at the top levels of the Department before indictment.”

• “And then there’s the question of all the other charges that never get brought. How is it that nobody at DOJ has ever been interested in Biden family corruption, or Clinton corruption? (The cases actually brought against Hunter Biden involved taxes and lying on a gun application, not corruption or bribery. Even if you assume that a prosecution against Joe while he was out of office would have been wrong politically, bribery charges against Hunter and Jim and other Bidens were open and obvious and were allowed to have their statutes of limitations quietly expire.). Did Ms. Sassoon ever speak up about this? Did any other lawyer at DOJ speak up or object? I mean, the FBI was thoroughly corrupt, but at least they had a handful of whistleblowers over there. Among the DOJ lawyers, none that I know of.”

The most interesting argument in defense of dropping the case against Adams, however, is that prosecutors making quid pro quo deals with defendants to advance the government’s agenda and interests isn’t just common, it is standard operating procedure. Alan Dershowitz writes in the New York Post,

The Trump justice department acted within its constitutional authority to drop the prosecution of Mayor Adams. The president, through his attorney general, has the power to determine prosecutorial priorities — such as the deportation of illegal aliens over the prosecution of a mayor who he believes could help him implement that policy.

Danielle Sassoon….like any public official, has the prerogative to resign or be fired rather than agree to file a motion she believes is wrong…But dropping prosecutions or reducing charges on the basis of quid pro quos is common in all prosecutorial offices….Indeed, it is fair to say that quid pro quos in the form of plea bargain offers are essential to the operation of that office, since the vast majority of prosecutions are resolved by quid pro quo plea deals. Nor are there constitutional differences between the kind of quid pro quo plea allegedly offered Adams and the more traditional quid pro quo plea bargains offered to ordinary criminal defendants. They both involve personal benefits offered to a criminal in exchange for the defendant helping the government. The fact that the help sought here involved a “quo” that is outside of the specific case — help in enforcing deportation policy — makes no constitutional difference.

Again, yecchh.

You can tote up the rationalizations as well as I can: “Everybody does it,” “It’s for a good cause,” “There are worse things,” “They did it first…” What we have here is 1) a corrupt Democratic mayor whom 2) a corrupt Democratic Justice Department wouldn’t have touched as long as he didn’t buck an unethical Biden Administration policy, but 3) once he was seen as a political problem, the corrupt mayor was prosecuted in part to send the message that such deviations from the party’s agendas would not be tolerated, except 4) the new administration in Washington concluded that having a supporter of the Trump deportation policies in New York City was more important than prosecuting a corrupt mayor, and 5) dismissing the indictment without prejudice would create a means of making sure he didn’t flip-flop on illegal immigration again.

Ethics Verdict: At best, this is utilitarianism at its ugliest and most ruthless. Everyone involved looks bad. I had a friend in academia who argued that it was impossible to apply classic ethics principles to politics, that the field was metaphorically Bizarro World. It is situations like this that make me suspect that he was right.