Emil Bove Calls Resignation in Face of Unethical Order “Misconduct”
Unsurprisingly, in his amicus filing, Paul Clement strongly recommended that Judge Dale Ho should dismiss the Eric Adams prosecution with prejudice. The most remarkable thing about Clement’s memorandum, as first noted by Josh Gerstein, is that Clement did not mention the Mike Flynn case, even while making claims directly undermined by it. (Adams’ own filing mentions Neomi Rao’s dissent in Flynn, and Emil Bove invoked it inaptly to say that because the amicus in Flynn did not seek discovery, it means no amicus would need to.)
Bove’s submission, signed as well by newly-confirmed Todd Blanche, is surprising, but not just for its inapt citation of Flynn.
Filed in the wake of multiple questions about his own ethical misconduct, Bove largely shifts a key premise of his own motion to dismiss, that it should be dismissed because of an appearance of impropriety. He largely replaces that justification, one of two made for dismissing the Adams case, to weaponization alone.
The first sentence of the section addresses his excuses for dismissing the case cites a paragraph that mentions only appearance of impropriety, then the transcript where he mentions weaponization but supports it by claiming an appearance of impropriety.
Dismissal is required, on consent, based on the Department’s conclusion that this prosecution reflects an improper weaponization of the criminal justice system, which has given rise to “appearances of impropriety and risks of interference with the 2025 elections in New York City.” Mot. ¶ 5; see also 2/19/25 Tr. 23.
But the balance of the passage relies entirely on his claim of weaponization, citing to Trump’s Executive Order making false claims that Biden politicized DOJ, and eventually citing an appellate decision in the Blagojevich case that threw out those quid pro quos that involved trading of official positions, but not those involving personal benefit (seemingly suggesting that Eric Adams would get no personal benefit from dismissal).
In this case, the Department has exercised the capacious prosecutorial discretion that supports the Motion pursuant to the anti-weaponization policy articulated by President Trump on his first day in office. Specifically, Executive Order 14147, entitled Ending the Weaponization of the Federal Government, sets forth the following policy: “It is the policy of the United States to identify and take appropriate action to correct past misconduct by the Federal Government related to the weaponization of law enforcement . . . .” 90 Fed. Reg. 8235. The express “purpose” of the policy is to “ensure accountability for the previous administration’s weaponization of the Federal Government against the American people,” which included conduct “oriented more toward inflicting political pain than toward pursuing actual justice or legitimate governmental objectives.” Id.
It cannot be denied that President Trump’s anti-weaponization policy is in the public interest as an important reform in response to recent abuses of the criminal justice system. The purpose of the policy, like the Petite policy, “is to protect the individual from any unfairness.” Rinaldi, 434 U.S. at 31. “The defendant, therefore, should receive the benefit of the policy whenever its application is urged by the Government.” Id. Here, for the reasons set forth in the Motion and at the February 19, 2025 hearing, that means the pending charges must be dismissed.
[snip]
As a legal matter, the Department’s conclusion that dismissal would serve the public good by deterring weaponization, and promoting Executive Branch national security and immigration objectives, is entirely proper. Every action that a diligent public servant takes should be designed to advance the public good, which is what the Motion seeks to achieve. If taking such steps were treated as the equivalent of a personal gift or bribe, whether under the ethics rules or bribery laws, government would literally grind to a halt. That is why “a proposal to trade one public act for another, a form of logrolling, is fundamentally unlike the swap of an official act for a private payment.” United States v. Blagojevich, 794 F.3d 729, 734 (7th Cir. 2015).
Remember: Judge Ho ruled that the publicity around the case did not violate local rules, and Adams never even claimed selective prosecution. This is Bove saying he knows better and Judge Ho has no say in the matter.
Having thus claimed that Trump’s own declaration that prosecutions against him were unfair can, in turn, taint entirely different prosecutions, his defense attorney then tries to flip his own alleged unethical conduct. Both in the introduction and in a long follow-up section (together making up about 8 pages of 18), Bove spins Danielle Sassoon and Hagan Scotten’s refusal to do something they viewed to be unethical as itself misconduct.
He does so in two ways. First, and most alarmingly, he suggests that resigning rather than taking an action they deemed unethical amounted to misconduct. Consider the logic of these two paragraphs (Bragg v. Jordan is the Second Circuit opinion holding that Mark Pomerantz had to respond to a Jim Jordan subpoena, sustaining Bove’s paranoia and Trump’s conspiracy theories about him):
The decisions by U.S. Attorney-2 and AUSA-1 to resign, rather than carry out their obligations under the Department’s chain of command, are not a basis to question the Motion. Each U.S. Attorney’s authority is derivate of the Executive Power that the President has delegated to the Attorney General. See 28 U.S.C. §§ 503, 509, 515. So too is the residual power of AUSAs, who are removable by the Attorney General. See 28 U.S.C. § 542. The Attorney General explained on February 5, 2025 that “it undermines the constitutional order and deprives the President of the benefit of his lawyers” when the Department’s attorneys “refuse to advance good faith arguments . . . .”3 SDNY’s prosecution team and Executive Staff did just that, preferring “political theatre” [sic] over their obligations to the Constitution and the public. Bragg v. Jordan, 669 F. Supp. 3d 257, 275 (S.D.N.Y. 2023).
SDNY has taken a markedly different tack in other cases by conceding that the office is bound by the Department’s senior leadership. In Blaszczak, SDNY felt “constrained” to “confess error at the direction of the Solicitor General’s Office” and to ask the Second Circuit to “set aside” trial convictions on several fraud counts. ECF No. 453 at 8, No. 18-2811 (2d Cir. Apr. 2, 2021); see also id. at 2 (noting that SDNY was “constrained to follow” the Department’s position); id. at 12 (“[T]he Government is constrained to concede that the § 641 object of each conspiracy was legally invalid. . . .”). In Paracha, an AUSA told the court that, because the dismissal motion had been “approved at the highest levels of the Department of Justice,” “w[e] do not have authority to make any changes to that document.” ECF No. 197 at 7 (emphasis added), No. 03 Cr. 1197 (S.D.N.Y. Dec. 20, 2019). Here, too, the SDNY prosecution team lacked authority to countermand a decision authorized by the Attorney General. Their misconduct is not a basis to extend this litigation, much less deny the Motion. [my emphasis]
3 https://www.justice.gov/ag/media/1388521/dl?inline.
In this passage, Bove presents what is the proper ethical decision — to end a relationship with a client if they ask you to do something you cannot ethically do — as instead misconduct (and he calls it misconduct even though, as he says elsewhere, Sassoon and Scotten are “the subjects of an ongoing investigation at the Department,” making it clear, on the same day the head of Office of Professional Responsibility was sacked, that he has prejudged the affair).
He does so while invoking the memo Pam Bondi issued last month, demanding that all lawyers of the Department be willing to “vigorously defend[] presidential policies and actions against legal challenges on behalf of the United States.” The consequence Bondi lays out for failing to zealously (a word repeated four times) defend Trump’s views is discipline or termination.
It is therefore the policy of the Department of Justice that any attorney who because of their personal political views or judgments declines to sign a brief or appear in court, refuses to advance good-faith arguments on behalf of the Administration, or otherwise delays or impedes the Department’s mission will be subject to discipline and potentially termination, consistent with applicable law.
But that’s not what happened here: Sassoon and Scotten resigned. (Indeed, Bove formally treated Sassoon’s offer, made to AG Bondi, to resign as such, rather than firing her while she remained an employee, which he could have done).
In other words, Bove is robbing Sassoon and Scotten of the ability to resign to avoid an unethical act. He’s saying the mere act of doing so — the act of making the ethically correct decision as a lawyer — amounts to misconduct.
And from there, he document dumps a bunch of communications Sassoon, Scotten, and some other AUSAs on the case sent, a veritable Twitter Files dump in a legal filing, clearly misrepresenting the context of at least some of them. (I’ve put the references to all eight Exhibits below.)
For example, Bove quotes from a text exchange three days after the election in which someone asks the very conservative Hagan Scotten if he’s going to go after a judgeship now that a Republican won. Scotten replies, “Got to convict Adams before I can think about anything else.” Bove quotes this three times!! But it appears to say precisely the opposite of what Bove implies — he uses it to slam Scotten (along with Sassoon) as “aggressive and careerist.” But instead it shows that Scotten was focused on what he was doing; he wasn’t rushing from what Bove claims is a dogshit prosecution to find a lifetime promotion. Plus, Bove claims that Scotten’s text, “illustrates why [Scotten] was later interested in using public filings to send messages to President Trump,” which makes no sense at all; it was already clear by the election that Trump was sucking up to Adams. If Scotten wanted to suck up to Trump, he would have ditched the prosecution ASAP, possibly even (as Bove himself did) rush to represent Trump in two criminal cases for attacking the country, in hopes of political gain.
Similarly, Bove treats a draft of the letter Sassoon ultimately sent to Pam Bondi on February 12 as a big gotcha, pretending that there’s no difference between “having the authority” to dismiss charges with “having a valid basis to do so.”
Four of the documents Bove cites (Exhibit B, Exhibit C, Exhibit G, and Exhibit H) discuss the drafting of this court filing, which was in turn a response to this inflammatory filing from Adams’ attorneys. The comments all seem to react to the headache Damian Williams had caused by promoting himself and writing an oped opposing corruption — though Adams’ letter make ridiculous claims that Williams was trying to get into the Mayoral race with just months to spare. Adams’ letter effectively says that Williams’ anti-corruption stance as US Attorney, one that targeted both overt Democratic donor Sam Bankman-Fried and Robert Menendez, was partisan. None of the comments supports Adams’ point — that there was some impropriety with the prosecution or prejudice for Adams before a jury. Nor do they conflict with Judge Ho’s opinion on Damian Williams’ op-ed, which is that it was a stretch to suggest it targeted Adams at all and certainly didn’t violate local rules.
Although Mayor Adams does not request relief under Local Rule 23.1, the Court notes that, after carefully reviewing Mr. Williams’s op-ed, the op-ed does not contain any statements that run afoul of the Rule’s prohibitions. In the op-ed, Mr. Williams provides hyperlinks to several prosecutions brought during his tenure as U.S. Attorney, including those of federal and state elected officials, but none concern Mayor Adams. In fact, the majority of the statements in the oped that Mayor Adams claims are problematic concern New York State rather than New York City politics. For example, Mayor Adams highlights Mr. Williams’s statements that “[t]he ability to raise obscene sums of money for a campaign is precisely the wrong bottleneck to elected office,” and that “[i]t reeks of pay-to-play corruption and is offensive to most New Yorkers . . . ” Jan. 18 Letter at 2 (quoting Williams’s op-ed). But those sentences are found in a paragraph lamenting the ability of candidates “to raise money from individuals or entities with business before the state,” opining that “[t]he state’s new matching funds program is woefully inadequate,” and arguing in favor of “a truly transformative public financing system for state elections. . . ” Id. (emphases added). They do not appear to be directed at New York City politics generally or at this case specifically.
There is one sentence in the op-ed stating that “[t]he public reporting alone paints a picture” that “America’s most vital city is being led with a broken ethical compass,” id. at 1, which could plausibly be read to be a reference to Mayor Adams (among others). This particular statement, however, “do[es] not cross the line drawn by [Local] Rule 23.1 in the sense that [it] do[es] not, by [itself], constitute opinions as to the Defendant[’s] guilt, and [is] not otherwise the type of statement[] proscribed by the rule.” United States v. Smith, 985 F. Supp. 2d 506, 539 (S.D.N.Y. 2013) (citing Local Rule 23.1(d)). Nor does the statement “go[] beyond the public record.”
There’s even a clear concern not to dictate anything to the incoming Main Justice team nor to piss off Trump, precisely the kind of deference Bove is demanding.
Plus, Bove omitted something from Sassoon’s letter to Bondi. Williams had a minimal role in the case.
As Mr. Bove’s memo acknowledges, and as he stated in our meeting of January 31, 2025, the Department has no concerns about the conduct or integrity of the line prosecutors who investigated and charged this case, and it does not question the merits of the case itself. Still, it bears emphasis that I have only known the line prosecutors on this case to act with integrity and in the pursuit of justice, and nothing I have learned since becoming U.S. Attorney has demonstrated otherwise. If anything, I have learned that Mr. Williams’s role in the investigation and oversight of this case was even more minimal than I had assumed. The investigation began before Mr. Williams took office, he did not manage the day-to-day investigation, and the 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. Mr. Williams’s decision to ratify their recommendations does not taint the charging decision
Emil Bove went fishing in the prosecutors personal emails (the other two AUSAs on the team were put on paid leave Friday, ensuring they lost access to these communications before Bove filed this), hoping to find corroboration for his false claims about politicization, and came up short. So instead, he simply made up they made Sassoon and Scotten look like careerists, when nothing he submitted supports that at all.
Twitter Files. An attempt to smear two prosecutors for making an ethical decision, precisely the basis of several ethical complaints raised against Bove himself.
Understand, too, Bove is playing a transparent game. Publishing these communications is a privacy violation, little different than the release of the Strzok and Page texts which DOJ subsequently determined was unlawful. Bove as much as concedes the point in his request asking to seal the exhibits.
In the Response, the Department sought to strike an appropriate balance between the public’s right of access, and the privacy interests of the attorneys at issue, by anonymizing the participants to communications. The participants are the subjects of an ongoing investigation at the Department.
[snip]
Even to the extent inferences regarding the identities of certain participants could be drawn based on connections to public reporting, that is not the case for each of the individual participants.
Of course, filing something under seal provides cause for the press to demand to have it unsealed under precisely the same “public right of access.” It won’t be sealed for long. And the only mystery about the identities of AUSAs 2, 3, and 4 is which is which member of the now-suspended prosecution team.
None of this helps Bove’s case. None of this disproves there was a quid pro quo. None of this presents any evidence that Sassoon or Scotten had any question about the ethics of their decision.
All it does is confirm that when Bove says he’s fighting weaponization, he means he’s going to go after anyone who gets in his way of weaponizing DOJ.
Exhibit A: Part of a package of communications Danielle Sassoon attached to an email; Bove claims that all are related to her resignation (it’s not clear they are)
On February 12, 2025, the recently-resigned Acting U.S. Attorney (U.S. Attorney-2) sent herself a draft letter stating that she was “personally disappointed in [her] predecessor’s self-serving actions after his departure. . . .” Ex. A,
[snip]
Attorney-2 sent an email attaching draft materials relating to her anticipated resignation. Ex. A. One of the documents was named “Adams PR,” i.e., press release, which suggests that she was already planning to publicize her resignation. Ex. A, Attachment 1. A another document, styled as a letter to the Attorney General, included the assertion that U.S. Attorney-2 “was personally disappointed in my predecessor’s self-serving actions after his departure, including the creation of a personal website.” Ex. A, Attachment 3. The draft letter also noted, in highlighted text, that “the Attorney General has the authority to order the dismissal of pending charges.” Id. On the day after sending the drafts, U.S. Attorney-2 emailed a letter to the Attorney General that omitted this language and claimed falsely: “The Government Does Not Have a Valid Basis To Seek Dismissal.”
Exhibit B: A discussion about how to respond to Eric Adams’ complaints about Damien Williams’ public comments
prior to making the public claim that only a “coward” or “fool” would sign the Motion, a recently-resigned AUSA from the SDNY prosecution team (AUSA-1) wrote the following regarding the letter that SDNY filed with the Court on January 22, 2025: “[U.S. Attorney-1] obviously has political ambitions, and I think suggesting we doubt that just costs us credibility.” Ex. B at 2
[snip]
AUSA-1 also wrote that it was “pretty plausible” to him that U.S. Attorney-1 “had a political motive in bringing this case.” Id.
[snip]
AUSA-1 pushed back. “I know that none of us were motivated by [U.S. Attorney-1’s] political aspirations, but I don’t think any of us know for sure what motivated [U.S. Attorney-1].” Id. AUSA-1 added the following comments in the draft of the letter:
- “[T]he point to me is just to separate ourselves from [U.S. Attorney-1].”
- “To me the point about the statements not naming EA feels a little too lawyerly—almost a technicality in this context since [U.S. Attorney-1] was obviously referring to EA [in the op-ed].”
- “I don’t want to ask anyone to reject the theory that [U.S. Attorney-1] had a political motive in bringing this case. Seems pretty plausible to me.”
- “I don’t want to say anything that picks a fight with EA’s accusation of political ambitions against [U.S. Attorney-1]: [U.S. Attorney-1] obviously has political ambitions, and I think suggesting we doubt that just costs us credibility.” Ex. B.
Exhibit C: Another discussion about how to respond to Eric Adams’ complaints about Damien Williams’ public comments
AUSA-1 explained that he hoped to “distance” the SDNY prosecution team from U.S. Attorney-1, “enough that [Judge] Ho and [President] Trump will know we don’t approve of what he did, but not so much that we magnify the scandal.”
[snip]
On January 19, 2025, AUSA-1 circulated a draft of the letter SDNY ultimately filed on January 22, 2025, in which the prosecutors argued—wrongly—that Mayor Adams’ “criticism of the article and the fact of its publication are beside the point.” ECF No. 102. In the email attaching the draft of the letter, AUSA-1 explained, “[b]asically, I tried to . . . distance us from [U.S. Attorney-1] enough that [Judge] Ho and [President] Trump will know we don’t approve of what he did, but not so much that we magnify the scandal.” Ex. C. In response to the draft, AUSA-3 argued, “I think we want to create distance between those prosecutors and the [] US Attorney.” Id. Another AUSA on the SDNY prosecution team (AUSA-4) added, “I agree that we should create some space from [U.S. Attorney-1], but I also think we should avoid anything that looks like us fighting with [U.S. Attorney-1] (which would be counterproductive).”
As the SDNY prosecution team continued to debate the substance of the draft letter, AUSA4 suggested that the prosecutors should argue that Mayor Adams was “wrong about his claim that our prosecution is motivated by [U.S. Attorney-1’s] political interests.” Ex. C.
Exhibit D: A November 8 text in which Scotten said he wasn’t going to pursue a judgeship right away
Just days after the 2024 election, in response to a text message asking if it was “time” for AUSA-1 to “take a seat on the bench,” AUSA-1 responded: “Got to convict Adams before I can think about anything else.”
[snip]
On November 8, 2024, AUSA-1 received a message with the following question: “You think it’s time to take a seat on the bench? Lol.” Ex. D. AUSA-1’s response included, “Got to convict Adams before I can think about anything else.”
[snip]
It is thus apparent from the context that, just as AUSA-1 hoped to convict Mayor Adams as the last notch in his belt before he took a “seat on the bench,” Ex. D,
Exhibit E: A July 17, 2024 discussion about trial strategy.
At least one of the prosecutors was as aggressive and careerist as U.S. Attorney-1. For example, on July 18, 2024, AUSA-1 exchanged messages with another AUSA on the SDNY prosecution team (AUSA-2) about efforts to “exclude” a “defense witness” in this case. Ex. E. AUSA-1 remarked that an “invocation is better” than “[l]etting him come in and refuse cross.”
Exhibit F: A September 5, 2024 comment from one of the other AUSAs about how they portrayed the influence relationship
On September 5, 2024, another AUSA on the SDNY prosecution team (AUSA-3) acknowledged in a text message to AUSA-1 that “we did a lot of gymnastics around the influence point” in the Indictment, and argued that “maybe making him the one exploiting the corrupt relationship works better.” Ex. F
Exhibit G: A January 21 response to a draft of the filing
Later on January 21, AUSA-1 circulated a revised version of the draft with comment bubbles that included:
- With respect to the “beside the point” sentence that was ultimately included in the letter, AUSA-1 noted that U.S. Attorney-2 “suggested this sentence, which makes the point less oblique—her objection to the prior version—while in my view still preserving our effort to distance ourselves from the article.”
- AUSA-1 also noted: “I think we have a sufficiently strong ending without the prior ending (any US attorney would signed) which [U.S. Attorney-2] and others felt might be read as an attempt to hem in the new crew at main justice before they had a chance to weigh in on the case.”
Exhibit H: Another message about the January 21 filing
In a separate message, AUSA-1 asserted that he preferred a strategy that “buys us more credibility by first making clear we’re not defending the [U.S. Attorney-1] article before then going on the attack.” Ex. H
typo: “ And he does so while claiming their ethical decision to resign rather than do something ethical amounted to misconduct.” Do something UNethical – ?
Located in the paragraph on the homepage where the descriptive blurbs are.
TY both.
Of course, the paragraph I look at least closely.
I know it’s been a while since I last commented, so I wanted to thank Marcy again for all of her wonderful thought provoking work. You do an amazing job of presenting the tons of detail about important cases!
One thing I was thinking about when reading this article is why the Trump admin is going so far out in its arguments about weaponization of government prosecutions. Often they seem so over the top and ludicrous.Obviously, he is pissed about the Jack Smith, NY, and Georgia prosecutions and wants revenge. But I think that he also sees a great opportunity to use his Justice Department and the often subservient/paid for courts to push case law out as far as possible to protect both him and his “ethically challenged” friends in the future. That way they can continue criming for the foreseeable future with much less worry.
Maybe I’m a little slow, and this is obvious to everyone, but what do you think?
My m
You are not slow. It’s classic: deny (I’m not criming!); accuse (it’s the other people who weaponized the Justice Dept); reverse onto victim (same). Watch the power of normal human instincts to comply and not make a fuss kick in. As the crimers don’t care about social norms and/or don’t feel any shame/guilt/whatever, they hold a big up front advantage at this stage.
If that doesn’t work, watch people flail while they try to engage with the ludicrous words – the words have no real meaning beyond enabling the behavior to continue, so engaging with them is like fighting tar in a tar pit – just get more tarred and start to sink.
If that fails, direct the mob covered in tar at anyone refusing to comply and refusing to engage with the meaningless words. The amazing part is how this can all be so obvious yet so effective at the same time. Humans!
It seems perhaps not the best choice for DOJ to say that no court examination beyond the motion is necessary, and then to provide a bunch of new information in an attempt to bolster their case. I expect this increases the chances that Ho will engage in a factual inquiry.
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Emil Bove seems to know less about contract and employment law than Donald Trump. No wonder the two like each other.
If you and I are having preliminary talks about my investing in your company, I have not made an enforceable offer that you can accept, and thereby force me to invest with you. If an employee and boss are having a discussion about the boss creating an abusive workplace, the employee has not extended to the boss an offer to resign that can be enforced against the employee. He has to fire the employee. If an employee quits rather than violate the law or binding rules of professional conduct, that’s not insubordination or unethical conduct. It’s the antithesis of it.
Actually, Emil Bove knows all that. He could probably write a law review article about it off the top of his head. Which means he’s lying to the court in a way he hopes is not obviously frivolous. Good luck with that.
Other reports have suggested Bove has a bit of a short fuse combined with a belief in his own sharpness. Looks like this filing was written with both those qualities running in top gear.
On a related topic, the filing expands the public record which Ho may use (says Clement) in making his ruling on dismissal.
Yup. Paul Clement, with access to records and evidence none of us have seen (well, except maybe Marcy), mentioned in his report that Emil Bove had only an assertion of belief in an improper SDNY indictment, while implying publicly available information (not just belief) indicates higher odds of Bove’s own “bad faith.”
I’d earlier noted item #3 on Judge Ho’s list of things for Clement to address was “…additional procedural steps and/or further inquiry…appropriate before resolving a Rule 48(a) motion.” I agree, it is unsatisfying that Clement hasn’t recommended such further inquiry, instead viewing resolution of the SDNY/DoJ conflict as “beyond the judicial ken” and “also unnecessary” (since dismissal with prejudice is the most likely result either way).
So, it’s dismissal with prejudice for government misconduct, without knowing who committed it. Mayor Adams beats the legal rap, but enough information became known to the public that his reelection seems unlikely. Think I’m OK with that, under the better ten guilty go free than one innocent be convicted principle. It would have more satisfying to see Judge Ho enter sanctions against the misbehaving attorneys and report their misconduct to the appropriate bodies…but we can’t always get what we want.
But it is a defeat for Trump, Bove (and Tom Homan for that matter, as he provided perhaps the strongest public confirmation of Bove’s intentional bad faith, by saying the quiet part out loud on Fox News). At least part of their plan was testing the bounds of what types of contrary-to-the-rule-of-law aggression a weaponized DoJ might get away with. Apparently, they might be finding out that at least for now, at least one boundary is stronger than they thought.
One wonders if that was exactly Clements aim in taking on the assignment: in essence, to save Trump’s legal strategy from itself in this specific case. Taking away the shovel DoJ was using to dig itself into a hole with zero intention to smack them on the head with it, instead handing it back to them so they could dig better holes somewhere else.
I’m confused as to the “misconduct” of which Bove speaks. What is “bad” about the actions that the DAs took? Is he saying those actions constitute weaponization (which, everyone knows, is bad)? If so, okay, granted, then, what is the legal penalty for such “misconduct”? Go to your room, or go stand in the corner (classic penalties, if I recall correctly!) Death by a thousand cuts? As you note, “None of this helps Bove’s case. None of this disproves there was a quid pro quo. ” I guess I just can’t see what any of it has to do with whether and how the Adams case should be dismissed.; sounds more like a baby whining. (“Mr. Bove: Are you arguing that the indictment should be dismissed without prejudice rather than with prejudice, for the reason that two of your subordinates chose to quit? Or are you saying there is another substantive reason for choosing dismissal without prejudice? Which is it?”)
The only sense in which I can understand Democrats’ pursuit of another Democrat is in Sheriff Cleavon Little’s world.
Democrats believe in law. That’s why they’ve supported firing their own people for misbehavior.
Mea culpa. I meant to write ‘Democrats’ pursuit of another Democrat as weaponization . . .’
It seems pretty clear to me that the misconduct, like the weaponization of DOJ, is nothing but bald assertion. If there was evidence to point to, surely someone would point to it. But no one does.
A well-supported heuristic is to remember that every GOP accusation is an admission about their own conduct. I would guess we all know people who would apply their standards / morals / responses to others they don’t know at all. This GOP playbook is an outgrowth of that.
I am amused by Bove’s request to seal communications that are already in the public sphere. It’s like anything else on the internet, there is no way to extirpate all references or copies. Same thing with Bondi’s ballyhooed Epstein file ‘release’ which at least was an improvement over the blank pages of ACA repeal attempt 1.0 (if not useful) because the Maxwell case already put those in the public record, without the redactions Bondi put in. Speaking of Epstein, where is the rest of it, AG Bondi? In a future bar disciplinary hearing, I suspect the two versions will be placed side by side to show Bondi’s manipulation of evidence.
If it wasn’t for bad faith they wouldn’t have any faith at all
’cause they were born under a bad sign, says Albert King.
I agree with Purple Martin and Captain Condorcet. Clement is saying that there is no recourse for what he calls bad faith, which other people might call extortion. Clement says the Court should not undertake any investigation beyond that necessary to decide the motion in front of it, the motion to dismiss without prejudice.
The clear implication is that there is no recourse for possible criminal acts by a prosecutor. He claims that because of separation of powers, there is no one empowered to look into the decisions of the executive branch.
That seems bad. Especially in light of the dicta in US v. Trump about the president’s total control of the AG.
FWIW, I’d say Judge Ho has the inherent authority to refer Bove to the proper disciplinary authorities. That’s something that every lawyer should do, and Ho is a lawyer as well as a judge.
The nice thing about advice from an agent is that the principal can modify or refuse to take it. The very conservative Paul Clement has axes to grind. Having worked a long time at Kirkland & Ellis, he knows how to grind them.
Have been wondering if choice of Clement was not just to inoculate the outcome against accusations of “the libs are persecuting us!” (nothing will work to do that, but hey why not try), but also to have the agent put all the axes on the table. Allows Court’s reaction to / modification of advice to speak to multiple layers of this cluster. Or address… more axes?
Ugh that’s way too many pseudometaphors in one place, sorry earl of h, but trust you take the core meaning. Off to battle the brain dulling stupidity of springing forward w/ more tea.
I’ll grant that as an equal possibility. Or perhaps unknowable to me, is better—I’m unqualified to give even a meaningful guess at the odds. You’re likely better informed.
It seems Judge Dale Ho, one of Joe Biden’s most liberal appointees, hired one of the most prominent conservative lawyers in the country, to research, analyze, and Steelman the positions of both government parties—something Clement’s long record demonstrates he’s capable of, if he wants to do.
But your point that Judge Ho can modify or refuse to take Clements recommendations—and Ed Walker’s that he retains “the inherent authority to refer Bove to the proper disciplinary authorities”—are worth remembering. Perhaps my more satisfying resolution may yet come into play.
Clement’s position appears to be:
1 the court should investigate no further than is necessary to determine whether there is the existence of a concern of Prosecution bad faith, sufficient to enable the court to decide the interests of justice require a dismissal with prejudice.
2 and on the evidence/material before the court
(a) the Prosecution itself says there was appearance of bad faith in the initiation of the proceedings
AND in the alternative
(b) there is material suggestive of bad faith in the Prosecution’s determination to dismiss the proceedings without prejudice
(And further to (b) there is the “sensitivity in the prosecution of elected officials”, that —cf Deferred prosecution agreements—the appearance of impropriety is intrinsic to any arrangement in which the official’s conduct is leveraged by the possibility of future prosecution).
But what Clement omitted from his analysis is what an actual judicial consideration of the material (the competing claims (a) and (b) ) should properly involve.
Clements analysis of the case law demonstrates that reasons for a ruling based on findings (rather than mere assumptions or presumptions) of bad faith/impropriety are necessary.
If the material creating the possibility/ appearance that the Prosecution are now acting improperly/in bad faith in seeking to dismiss the case, is determined to be correct then the Prosecution is also now improperly asserting that the proceedings had been improperly brought and/or weaponised. Conversely motions and arguments made before the court by the prosecution and ruled on by the Court in favor of the prosecution, are now by necessary implication disavowed by the DOJ in its current formation.
So, it would be unreasonable for any judge to say:
I have competing claims before me, one or other of them is correct, but both cannot be wholly correct, but it doesn’t matter, something bad has happened somewhere, but whaddayagonnado?
Being sensitive not to unduly intrude upon “intramural considerations”, the rule of parsimony, is one thing, but it is quite another to avoid any exploration of (and explanation for) the extraordinary conflicting allegations of bad faith in the conduct of proceedings before him, having as he does a duty to safeguard the administration of justice generally in proceedings before him, over and above the specific consideration in Rule 48.
I would have thought that any District Judge worth their salt would not want to abdicate their responsibility to make a ruling on a firmer factual foundation than Mr Clement’s argument apparently invites.
Great analysis, much appreciated, thanks!
Quickie: Something odd in final sentence of para 7 and second sentence of para 8:
“Both in the introduction and in a long follow-up section (together making up about 8 pages of 18), Bove spins Danielle Sassoon and Hagan Scotten’s refusal to do something they viewed to be unethical and itself misconduct.
He does so in two ways. First, and most alarmingly, he suggests that resigning rather than taking an action they deemed unethical amounted to misconduct.”
Seems like possibly a C&P issue, the end of second sentence in para8 says nearly the same wording as end of para 7 (seems redundant). Also, para7 ends “refusal to do something they viewed to be unethical and itself misconduct”, suspect you wanted “refusal to do something they viewed to be unethical _as_ itself misconduct”.
“It cannot be denied that President Trump’s anti-weaponization policy is in the public interest as an important reform in response to recent abuses of the criminal justice system.”
Wait just a minute there! I deny it. And I’ll bet I’m not alone. Bove writes like a high school junior who just discovered Ayn Rand–the kind of sullen teen whose parents let him keep his bedroom door closed all the time because they’re convinced he’s a genius. You know, like Stephen Miller, except…not so much.
Strange, all the abuses of the justice system I’ve heard about are by The Felon Guy and his minions.
“Bove writes like a high school junior who just discovered Ayn Rand–the kind of sullen teen whose parents let him keep his bedroom door closed all the time because they’re convinced he’s a genius.”
That’s a brilliant simile, not the least because Randian thought is the basis for most of what’s going on today in the GOP.
Rand would have swooned over Musk, a fellow emigre’ who embodies, to a startling yet predictable degree, the poorly written John Galt.
“Atlas Shits Himself,” could be the title to this ongoing, real-world iteration of the type, as we’re watching Musk athwart Trump (like a SpaceX booster with Musk’s Slim Pickens humping his ride) blast off and proceed inevitably toward self-detonation, leaving only decades of repair, regret, and a civilization-wide debris-field for the rest of us to deal with.
Randians do indeed abound among the upper echelons of the Trump administration. They are what passes for intellectuals, it seems–a sure sign of both the mediocrity and the obsolescence of any so-called “thought” behind the whole thing.
Wait, the charges against Adams appeared under Biden, right? So it’s Democrats weaponized against a Democrat? This whole “weaponization” argument is just an excuse for Trump to rail against any damn person he wants and try to flip them, as we see here. Historians will not be kind to him, and remember–they get the last word.
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Thank you, Marcy. I understood this post clearly. My addled art-filled brain doesn’t always have the time or patience to puzzle out your careful writing. The agony of trying to move past the personal “I just can’t rap my head around these crimes” mindset is often abated as I comprehend at least a modicum of each post. You offer confidence to people like me that greater minds are at work…thereby hope.
Perfectly said. That’s exactly how I feel every time I read her analyses.
I don’t know if it was intentional, but when you wrote “‘I just can’t rap my around these crimes,'” the misspelling of wrap struck me as brilliant.
I’ve been rapping my own head *against* these crimes for what feels like years.
Bove is doing this because he is convinced that nobody can stop him, and he holds all the Trump cards if they try. The whole administration is focused on the goal of attaining absolute power by abrogating the legislative and judicial branches to the role of rubber stamping its wishes. When ‘the law’ gets in the way, the focus is on finding a way around it, and if that fails changing the law, and if that fails, simply ignoring it. Who can enforce it? They are certain that the answer is, “nobody can”, because law doesn’t exist unless the autocrats are willing to abide by it. It’s a Catch-22
“Institutions will not save you” from autocracy. Compromising with these people is not possible.
Intelligent argument, but this scenario has never really played out in America and 100,000,000 ticked off Democrats or anyone else might just get violent, right?
Perhaps you can reverse the order: After the first EO onslaught it became: simply ignoring it. Legislation is hard – so why bother until absolutely necessary?
Object: shun
Upon an overall inspection,
There is distinct disconnection,
All with a major misdirection,
So it deserves a strong objection:
Assumes facts not in evidence,
Yes, we have here, ladies and gents,
A very twisted turn of events,
Dare I say, close to statutory offense.
What say I of this double-cross,
So foul it deserves a charity toss,
It seems in service to a chaos boss
whose ego’s too large to handle a loss.
And I’m quite sure it’s not just me,
calling into question fait accompli,
Who won’t hear, won’t speak, won’t see
an oath, a duty to our sense of liberty?
Rule of law should take a stand,
Make a difference, take command,
Our Constitution is so grand:
Co-equal branches, not coup-coup land.
What will happen when this Trump regime repeatedly fails to comply with court orders?
This story today in The Guardian reminds that at least two courts have already ruled that the government has not complied with the earlier orders of those courts to pay out congressionally-mandated funds.
On the New Yorker Radio Hour podcast, Anthony Romero the executive director of the A.C.L.U suggests that if the government won’t follow court orders “We might have to shut down the country” (with mass protest in the streets).
And then we’ll probably have Trump wanting to use the military against those protesters, and who thinks Hegseth would tell him no?