The Thursday Afternoon Massacre

The chaotic start to the second Trump Administration includes a fiasco reminiscent of the infamous Watergate era “Saturday Night Massacre.” In a February 10 memo, Acting Deputy Attorney General Emil Bove ordered Danielle Sassoon, Acting U.S. Attorney for the Southern District of New York, to file a motion to dismiss “without prejudice” pending criminal corruption charges against New York Mayor Eric Adams. Sassoon declined, as did many other lawyers in the U.S. Attorney’s office and in Main Justice in Washington, leading to a series of resignations.

Bove’s memo stated that he was acting “without assessing the strength of the evidence or the legal theories on which the case is based.” He also stated that his directive “in no way” called into question the integrity and efforts of the line prosecutors or Sassoon’s leadership. He cited “two independent reasons” for dismissal: (1) the actions of the former U.S. Attorney threatened the integrity of the prosecution and improperly interfered with Adams’ reelection campaign; and (2) the prosecution unduly restricted Adams’ ability to fight crime and particularly to support federal efforts to combat illegal immigration.

Sassoon responded in an 8-page February 13 letter addressed to Attorney General Pamela Bondi that provided a detailed rebuttal to Bove’s directive and requested a meeting with Bondi to discuss the matter. She concluded by offering to resign if Bondi was unwilling to meet or reconsider Bove’s directive.

On the same day, Bove responded to Sassoon with his own 8-page letter rebutting hers. Bove’s letter accepted Sassoon’s resignation, placed two assistant U.S. attorneys who supported her on administrative leave, and stated that all three would be investigated.       

The two assistant U.S. attorneys from New York resigned along with Sassoon. One of them, Hagan Scotten, wrote his own scathing letter to Bove.^[1]He concluded with this widely-quoted zinger: “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.” All … Continue reading Bove then turned to the Public Integrity Section in Main Justice in search of someone willing to sign the dismissal motion. Five lawyers in that office, including its two leaders, refused and resigned.

Reportedly, Bove next called the remaining members of the Public Integrity Section together on Friday morning and gave them an hour to come up with two attorneys willing to sign the motion. One eventually came forward—apparently to protect the others–and he, along with a lawyer from the Criminal Division and Bove himself, signed the motion. Notably, Bove was the only lawyer who appeared on behalf of the United States at an initial hearing on the motion.^[2]More detailed background on all this can be found here, here, and here.

The actions of the Justice Department have been widely condemned,^[3]Ironically, the episode has also severely damaged its supposed beneficiary, Adams. with some of the harshest criticism coming from rock-solid conservative sources.^[4]See here, here, and here. The criticism is justified. Bove’s stated reasons for the dismissal are at best dubious and at times implausible and contradictory.

His first asserted rationale—misconduct by the prior U.S. Attorney that tainted the prosecution—is thoroughly contradicted by the facts detailed in Sassoon’s February 10 letter. And if this was an independent reason to end the prosecution why not dismiss it outright?

Bove’s second rationale—freeing Adams to concentrate on fighting crime—is also suspect on several grounds. Sassoon asserts that it constitutes, in effect, a quid pro quo to obtain Adams’ support for federal immigration enforcement efforts. Bove and Adams deny this, but Adams’ subsequent actions are consistent with her assertion. The proposed dismissal without prejudice, thereby retaining the threat of reinstatement, further supports her assertion. Another problem with this rationale is that its logic potentially extends to and undermines prosecutions of incumbent public officials in general. Obviously, a federal criminal prosecution would be a major distraction for any such official and seriously impact their performance.      

Other aspects of Bove’s conduct seem contrived and inconsistent. He may have coached Adams’ lawyers into embracing his rationales. The Adams lawyers said in a letter to the judge assigned to the case, Dale Ho, that Bove “invited us to a meeting at which he asked us to address how the case might be affecting Mayor Adams’s ability to do his job and whether there was evidence of politicization.”

Moreover, Bove’s February 13 letter to Sassoon seems to contradict his earlier statements that the dismissal was not based on the legal merits of the case or the conduct of prosecutors other than the former U.S. Attorney. In it he asserted: “The case turns on factual and legal theories that are, at best, extremely aggressive.” He also alluded for the first time to concerns over the conduct of Sassoon and the line prosecutors.  But if these were the real concerns, he surely would have invoked them initially.

Given the questionable stated grounds for dismissal and related inconsistencies, could there be another explanation for what happened here? At the risk of appearing cynical, my guess—and, of course, it’s purely a guess—is that Trump simply told Bove, directly or through an intermediary, to drop the prosecution and left it to him to make up a legal justification for doing so.

Trump denies instigating the dismissal. However, it’s hard to believe Justice officials would initiate it without his involvement, especially if one accepts their claim to have acted without regard to the merits of the case. Clearly, Adams had been currying favor with Trump for some time. Trump rewards those who kiss his ring and feed his massive ego just as he punishes his detractors. Indeed, Trump had publicly suggested that Adams was being treated unfairly and mused about pardoning him. It also figures that Trump would want the option of reviving the charges if Adams strayed from his good side.

Judge Ho declined to rubber stamp the dismissal motion and is now conducting an inquiry into whether it is contrary to the public interest.^[5]One specific point Judge Ho might rule on is the “without prejudice” aspect. He may be able to shed light on how this came about, perhaps by questioning Bove under oath concerning its genesis. Ultimately, however, the Adams prosecution will almost surely be abandoned. As a legal and as a practical matter, Judge Ho can’t force the Justice Department to prosecute the case.

Whatever its outcome, this episode raises a number of broader concerns. 

How politicized will the Trump Justice Department become? Trump and his allies railed against alleged political manipulation of the legal system by the Biden Justice Department. This case may signal that they are prepared to take such abusive practices to new levels, as Trump so often does.

Where was Attorney General Bondi? While Bove was the front man, creating havoc within the Justice Department, Bondi’s role is unclear. She kept her fingerprints off the documents and declined to meet with Sassoon or personally respond to her letter. Bondi appeared to be one of Trump’s more palatable cabinet choices, but this episode calls into question her leadership and integrity.

What does it say to current and prospective Justice Department lawyers? The disrespectful, ham-handed treatment accorded Sassoon and the others suggests that Justice leadership won’t hesitate to jettison high-quality lawyers who don’t reflexively accept its political objectives.^[6]Bove doubled down on this following the initial hearing on the dismissal motion, virtually inviting more resignations. He said that Justice attorneys who are “with me” will “do great things to … Continue reading If this is the message, expect more principled, highly competent attorneys to head for the exits. Other such attorneys considering employment at Justice will probably think twice as well. The Department will sorely need attorneys of their caliber to defend Trump’s many legally fraught actions.

What does it signal to the courts about the Department’s credibility and bona fides? The willingness of the judiciary to assume good faith on the part of the executive branch and accord some degree of deference to its legal positions can be an important factor in litigating close cases. The questionable if not disingenuous conduct of Justice leadership here threatens to squander the Department’s credibility with the courts—something that may come back to bite them as the host of legal challenges to Trump’s actions move forward.

Where is the Congress? The silence on the part of Republicans in Congress is deafening. Many of them joined Trump in denouncing alleged abuses of the Justice Department under the prior administration, but they have nothing to say here. In this instance and others during just the first month of the Trump Administration, Republican majorities in Congress seem wholly disinclined to exercise their oversight responsibilities as a supposedly co-equal branch of government.