Paul Clement has filed his court-appointed friend-of-the-court transient within the Eric Adams case, recommending that Decide Ho dismiss the case—however with prejudice, not with out prejudice. From the transient:
The federal government’s personal current filings replicate a perception that this prosecution was initiated in dangerous religion. See Dkt.122 ¶5; see additionally Dkts.125-1, 125-2. Different data that has grow to be public casts doubt on that declare and suggests the choice to dismiss the indictment was undertaken in dangerous religion. See, e.g., Dkts.150-3, 150-8. It’s virtually definitely past the judicial ken to definitively resolve that intramural dispute amongst executive-branch prosecutors. It’s also pointless. Beneath both view, there’s little justification for preserving the potential for re-indictment by dismissing with out prejudice. Whereas the “salient situation” for the courtroom considerations the choice to terminate, not provoke, the prosecution, Rinaldi, 434 U.S. at 30, if political issues improperly influenced the preliminary determination to hunt the defendant’s indictment, then dismissal with prejudice would definitively get rid of that taint. And if improper issues tainted the choice to hunt dismissal, then there’s a fortiori each motive to guard the defendant from the specter of re-indictment.
Three further, carefully associated elements help dismissal with prejudice as the suitable treatment right here. First, the truth that this case includes a presently serving elected official raises distinct considerations which are eradicated by a dismissal with prejudice however exacerbated by a without-prejudice dismissal. Prosecutions of incumbent public officers are among the many Justice Division’s most delicate undertakings and lift inevitable suspicions of political motivations or improper leverage over the official’s discharge of his duties to constituents. Even the looks that the prospect of re-indictment would trigger public officers to be extra attendant to the chief department than to constituents is deeply troubling and raises critical accountability considerations. A dismissal with out prejudice fuels these considerations by expressly preserving the potential for re-indictment.
Second, dismissal with prejudice extra carefully resembles the choices the chief can obtain unilaterally, whereas dismissal with out prejudice leaves the accused topic to re-indictment on the government’s discretion. Nothing a courtroom can do beneath Rule 48 can forestall the President from issuing a pardon that ends the prosecution and usually precludes additional jeopardy for the offense (and even a conditional pardon should make any situations express). Equally, the unreviewable government determination to chorus from prosecution leaves the person’s liberty untouched. Dismissal with out prejudice, against this, leaves a once-indicted defendant in a uniquely susceptible place.
Third, dismissal with prejudice finest accords with the principal workplace of Rule 48(a) specifically and the separations of powers extra usually—specifically, the promotion of particular person liberty. The prospect of the courtroom ordering the prosecution to proceed runs instantly counter to the courtroom’s regular liberty-preserving function in a felony trial. Insisting on dismissal with prejudice, against this, preserves particular person liberty whereas eliminating the problematic incentives and look points occasioned by a without-prejudice dismissal of an incumbent public official.
