The Weekly Sift

This week seven federal prosecutors resigned rather than follow unethical orders from their bosses in Trump administration. This case raises a more general question: Given Trump’s disrespect for ethical norms intended to insulate certain key government functions from inappropriate political interference, will there be space in the Trump administration for ethical government employees to do their work?

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The Guardian provides the shortest possible summary of the current situation:

[S]even prosecutors – including the acting US attorney in southern district of New York, the head of the criminal division and the head of the public integrity section – resigned in protest rather than dismiss the case [against New York Mayor Eric Adams] for political reasons.

Now let’s back up and review this story from the beginning, following a timeline compiled by ABC News: After an investigation that had been going on for at least a year, last September federal prosecutors at the Southern District of New York (SDNY) sought and received a grand jury indictment of Mayor Adams.

At the time, the Adams indictment was used in arguments that the Biden Justice Department had not been politicized or “weaponized”, as Trump frequently claimed. Yes, a special prosecutor appointed by Attorney General Merrick Garland had indicted Trump, but that was because Trump had broken numerous laws. DoJ also went after Democratic lawbreakers like Adams and New Jersey Senator Robert Menendez.

The indictment, which is unsealed the next day, alleges Adams accepted illegal gifts, including plane upgrades and hotel stays, from Turkish businessmen and officials in exchange for preferential treatment when he was Brooklyn borough president and later as mayor. The indictment also alleges Adams received illegal campaign straw donations from Turkish nationals.

Adams denied the charges, refused to resign, and pleaded not guilty. [1] A trial was scheduled to begin in April. During the transition period after Trump’s election win in November, Adams met with Trump at Mar-a-Lago and with Trump’s border czar Tom Homan. Adams attended Trump’s inauguration. The next day, Adams began claiming that his indictment was retribution for criticizing President Biden’s immigration policies (even though the timeline on that doesn’t work). On February 10, after additional meetings between Adams, his attorneys, and Trump officials, Deputy Attorney General Emil Bove sent a letter instructing SDNY to dismiss charges against Adams “without prejudice”, meaning that the charges could be refiled in the future.

Danielle Sassoon. Dismissing a federal indictment is not an automatic thing. The prosecutor’s office has to file a motion with the court asking for the dismissal. The motion typically contains some justification for the dismissal, which the judge then must rule on. And that brings Danielle Sassoon, the acting U.S. Attorney for SDNY, into the picture.

Sassoon is not anybody’s idea of a liberal Democrat. She clerked for the late Supreme Court Justice Anton Scalia, a legendary figure in conservative legal circles. Trump had appointed her as acting US attorney just three weeks before. Sassoon responded to Bove’s instructions by writing an eight-page letter to his boss, Attorney General Pam Bondi. [2]

Mr. Bove rightly has never called into question that the case team conducted this investigation with integrity and that the charges against Adams are serious and supported by fact and law. Mr. Bove’s memo, however, which directs me to dismiss an indictment returned by a duly constituted grand jury for reasons having nothing to do with the strength of the case, raises serious concerns that render the contemplated dismissal inconsistent with my ability and duty to prosecute federal crimes without fear or favor and to advance good-faith arguments before the courts. … I cannot fulfill my obligations, effectively lead my office in carrying out the Department’s priorities, or credibly represent the Government before the courts, if I seek to dismiss the Adams case on this record.

Sassoon went on to recount the Bove’s justifications for dismissing charges, the first of which she finds unethical

First, Mr. Bove proposes dismissing the charges against Adams in return for his assistance in enforcing the federal immigration laws, analogizing to the prisoner exchange in which the United States freed notorious Russian arms dealer Victor Bout in return for an American prisoner in Russia. … Adams has argued in substance and Mr. Bove appears prepared to concede that Adams should receive leniency for
federal crimes solely because he occupies an important public position and can use that position to assist in the Administration’s policy priorities.

and the second unbelievable.

Second, Mr. Bove states that dismissal is warranted because of the conduct ofthis office’s former U.S. Attorney, Damian Williams, which, according to Mr. Bove’s memo, constituted weaponization of government as defined by the relevant orders of the President and the Department. The generalized concerns expressed by Mr. Bove are not a basis to dismiss an indictment returned by a duly constituted grand jury, at least where, as here, the Government has no doubt in its evidence or the integrity of its investigation. … In short, because there is in fact nothing about this prosecution that meaningfully differs from other cases that generate substantial pretrial publicity, a court is likely to view the weaponization rationale as pretextual. [3]

The first consideration is the disturbing one, because it suggests a truly dystopian role for the Department of Justice: If elected officials refuse to play ball with the Trump administration, Trump could use a Justice Department investigation to get something on them, then hold that potential prosecution over their heads until they do what he wants.

In a footnote, Sassoon lays it out:

I attended a meeting on January 31, 2025, with Mr. Bove, Adams’s counsel, and members of my office. Adams’s attorneys repeatedly urged what amounted to a quid pro quo, indicating that Adams would be in a position to assist with the Department’s enforcement priorities only if the indictment were dismissed. Mr. Bove admonished a member of my team who took notes during that meeting and directed the collection of those notes at the meeting’s conclusion. [4]

In her letter, Sassoon asked AG Bondi for a meeting, and offered her resignation if Bondi did not want to further justify or reconsider DoJ’s position. Her resignation was accepted.

Public Integrity. The obvious next option for Bove would have been to ask SDNY’s second-in-command to file the motion to dismiss the charges, but (perhaps seeing Sassoon’s resistance as an SDNY independence issue), he pulled the case back to DoJ’s aptly named Public Integrity Section in Washington, which often handles political corruption cases. ABC reports:

However, as soon the Public Integrity Section was informed it would be taking over, John Keller, the acting head of the unit, and his boss, Kevin Driscoll, the most senior career official in the criminal division, resigned along with three other members of the unit, according to multiple sources.

The case soon claimed a seventh scalp, SDNY’s Assistant US Attorney Hagan Scotten, another prosecutor with impeccable conservative credentials, having clerked for Brett Kavanaugh and John Roberts. He expressed no hostility to the policy goals of the Trump administration, but strongly implied that someone needs to explain legal ethics to the President.

There is a tradition in public service of resigning in a last-ditch effort to head off a serious mistake. Some will view the mistake you are committing here in the light of their generally negative views of the new Administration. I do not share those views. I can even understand how a Chief Executive whose background is in business and politics might see the contemplated dismissal-with-leverage as a good, if distasteful, deal. But any assistant U.S. attorney would know that our laws and traditions do not allow using the prosecutorial power to influence other citizens, much less elected officials, in this way. If no lawyer within earshot of the President is willing to give him that advice, then I expect you will eventually find someone who is enough of a fool, or enough of a coward, to file your motion. But it was never going to be me.

Friday night, the motion did get filed, though apparently with great reluctance.

The roughly hour-long meeting, where the public integrity section weighed whether to resign en masse after agreeing that the dismissal of the Adams case was improper, culminated with [Edward] Sullivan, a veteran career prosecutor, agreeing to take the fall for his colleagues, according to two people familiar with the matter.

The judge. The judge in the case, Biden appointee Dale Ho, appears to have little choice but to ultimately accept a motion to dismiss. After all, a judge can’t also prosecute the case if the government is unwilling to do so.

However, Ho would be within his rights to hold a hearing into the circumstances of the dismissal motion. Sassoon had warned about this in her resignation letter:

Seeking leave of court to dismiss a properly returned indictment based on Mr. Bove’s stated rationales is also likely to backfire by inviting skepticism and scrutiny from the court that will ultimately hinder the
Department of Justice’s interests. In particular, the court is unlikely to acquiesce in using the criminal process to control the behavior of a political figure.

One option I can imagine (though I don’t fully understand the law here) is that Ho could give DoJ a choice: proceed with the prosecution or accept a motion to dismiss with prejudice, meaning that DoJ would lose the option to refile the charges if Adams wasn’t cooperating completely enough with Trump’s political goals. That change would take away Trump’s leverage over Adams going forward.

Larger considerations. Benjamin Wittes (founder of the Lawfare web site) takes a step back to

• describe the inherent conflict between the way politicians behave as a matter of course (horse-trading, partisan maneuvering) and the ethical behavior we expect from prosecutors,
• discuss the Justice Department norms intended to insulate prosecutors from politics,
• explain how Trump has undone those norms.

Then he concludes:

There is a deep problem here and it goes way beyond the Adams case: Having ripped apart the only system that allows prosecutors to function ethically, we no longer have a mechanism by which federal prosecutors can function ethically. We have a rule in which the president can reach down to the assistant U.S. attorney level and order political favors for his friends in exchange for other remunerations. And we have ethical expectations of prosecutors that they will not entertain such demands.

The result? We have resignations. And we’re going to have more. Because if the president or his minions care about the case you’re working on, there is no place in government for an ethical prosecutor any more. …

As long as a prosecutor can do good work, my plea is to stay in place. But at this point, all federal prosecutors need to be prepared to resign. They are all one phone call away from being put in the position of facing a demand to behave unethically, one phone call away from a demand that is fundamentally political in character, not about justice. And when that call comes, it is imperative that prosecutors do as these ones did—resign publicly, showing their work along the way.

Wittes is talking specifically about prosecutors, but similar considerations apply throughout the government. Every profession within the government has its own ethical standards that protect against inappropriate political interference, and it’s not hard to imagine situations where Trump might circumvent those standards to pursue his goals. (Paul Krugman warns against buying inflation-protected TIPS bonds, precisely because Trump might make himself look good by pressuring government statisticians to minimize the rate of inflation.)

So the admonition Wittes gives to prosecutors needs to apply to federal employees across the board: As long as you can do your job ethically, keep doing it. Don’t resign and give Trump an opportunity to appoint someone more loyal to him than to the nation or to the mission of your agency. But if at some point you’re faced with a choice between your job and your soul, defend your soul and resign.

And if you can make a lot of noise on your way out the door, so much the better.

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[1] New York’s state constitution gives Governor Hochul the power to remove Adams. While his case was playing out in court, it made some sense for Hochul to keep her distance. But now that the fix is in, her lack of action is mysterious.

[2] It’s worth pointing out that both Bondi and Bove had been defense lawyers for Trump before being appointed to head DoJ. They are literally Trump’s lawyers, not lawyers for the United States.

[3] A similar statement could be made about dismissing the classified-documents indictment against Trump.

[4] Not wanting anyone to take notes indicates what lawyers call “consciousness of guilt“.