DOJ’s proposed dismissal of the criminal bribery indictment of New York Mayor Eric Adams, in return for his agreement to help with the Trump administration’s immigration crackdown, has drawn criticism from various quarters. Many of those have been on the right, including not only the conservative AUSAs who resigned in protest, but also commentators from the Wall Street Journal, the National Review, and others who usually back Trump’s positions—particularly on immigration.
But others, in defense of the decision, have analogized the arrangement to a typical DOJ cooperation deal with a criminal defendant. The typical rhetorical question: doesn’t DOJ agree to drop charges against defendants all the time in return for their help with prosecutions or other law enforcement proceedings?
The answer: Yes, but there is a fundamental difference here. Which explains why Adams, his counsel Alex Spiro, and Acting Deputy Attorney General Emil Bove have so strenuously denied that there was any such quid-pro-quo deal.
There are several situations in which federal prosecutors may cut a deal with a criminal target or defendant in return for cooperation. The most common is under a "cooperation plea agreement," otherwise known as a "5K" deal. The defendant agrees to plead guilty, to provide information to the government about others involved in the crime or about separate crimes, and to testify about those crimes and other persons in trial or before a grand jury, if necessary.
In return, the government agrees that it will tell the sentencing judge about the defendant's cooperation and, if the cooperation has been truthful and valuable, recommend that the judge reduce the defendant's sentence accordingly. The formal method for this recommendation is via a motion for a sentencing reduction under Section 5K1.1 of the Federal Sentencing Guidelines; hence the term "5K." The judge does not have to agree to lower the sentence, but usually will, because otherwise it would be hard to persuade future defendants to accept such deals.
In some cases, in return for cooperation, the government may agree not to charge the cooperator at all. This may involve a Deferred Prosecution Agreement or a Non-Prosecution Agreement, or in some cases granting the cooperator immunity from prosecution, as long as his or her testimony is truthful.
And in other cases, law enforcement agencies may actually put suspects on its payroll, having them work as confidential informants to provide information on ongoing crimes, in return for money, or perhaps informal promises not to pursue charges against them.
But there is a major difference between those situations and the deal that DOJ apparently cut with Adams. Ordinary, legitimate cooperators offer to act in their individual capacities--providing information or testimony--in return for the benefit of avoiding or reducing criminal liability.
Adams is a public official, who was elected to act on behalf of the people of New York, and use his powers only for their benefit. The agreement he apparently made here was to take actions in his official capacity--using his power as Mayor to influence city immigration policy, such as by opening the Rikers jail to ICE--in return for personal benefits (i.e., having the charges dropped). And the deal was also structured so that if he did not use his official power in that way, the charges could be re-filed.
Agreeing to act on your own behalf in return for a benefit to you is generally legal. Agreeing to use your official powers in return for a personal benefit is not. Ordinarily, DOJ does not enter into such deals--it prosecutes them. Indeed, that is what Adams was originally charged with.
Think of it another way: If someone were to offer Mayor Adams $10,000 in return for his taking some official action to help the payer—say, by granting a building permit—few would claim that was allowed. The illegality would lie in Adams using his position of public trust for private benefit. Why would it be any different if the benefit to Adams is his freedom rather than cash?
The issue is not that DOJ is trading off one federal law enforcement interest for another. It is that Adams, with DOJ’s help, is trading his office for a free pass.
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