This is Bloomberg Law with June Grossel from Bloomberg.
Radio City Elections.
My fellow New Yorkists, as you may have heard, the Department of Justice has directed that the case against me be dismissed, finally ending a month's long saga that put me, my family, and the city to an unnecessary ordeal.
In a stunning memo, Acting Deputy Attorney General Emil Beauvey told federal prosecutors in Manhattan to dismiss the criminal corruption case against New York City Mayor Eric Adams. Even more stunning are the political reasons given for dropping the case. The merits of the bribery charges against Adams were not even considered. Adams is accused of accepting illegal campaign contributions and lavish travel perks worth more than one hundred thousand dollars.
He spoke today as if he'd been vindicated.
So I thank the Justice Department for its honesty. Now we can put this cruel episode behind us and focus entirely on the future about city.
Adams may want to put the episode behind him, but under the terms laid out in the memo, the charges against him could still be refiled after the November mayoral election. My guest is former federal prosecutor Robert Mintz, a partner maccarter in English, Bob, I want to put this dismissal of the case against Adams in context. According to the memo, the decision was made without considering the evidence against Adams
or the theory of the case against him. The decision was made for a string of political reasons, including that the prosecution has impeded Adam's ability to asston. Trump's crackdown on immigration and crime, interfered with Adam's re election campaign, and the case has been tainted by pre trial publicity. So how unusual is it to have Main Justice tell a US Attorney's office to drop a case for these reasons.
Well, this decision by the Department of Justice, it directs the Southern District to drop this case, as highly unusual for a number of reasons. First of all, it's highly unusual because it's a pending case. It's not a question about whether or not to bring the charges in the first place. It's asking the US Attorney's office to drop the case in the middle of the prosecution. And there were two other reasons that were cited in the memo, by the acting Deputy Attorney General as the reason to
dismiss the case. One of them was that they said that the case was brought too close to the election. It was brought about nine months before the mayoral primary in New York, and the argument was that by doing that it interfered with the election, interfered with the primary, and of course those charges are still pending as Mayor Eric Adams is running for reelection. That's something that the Department of Justice has paid attention to in the past.
There's always been a directive not to bring cases close to an election so as to impact the election without having voters know the result of the prosecution. But pushing it out nine months before a primary is really pushing it out far beyond what had been done in the past. The usual rule had been not to bring into indictment, not to bring charges, not to take investigative steps in an overt way within about sixty days of an election, So that made it unusual by pushing it out as
far as nine months. But the other reason was even more unusual, which is to say that by indicting a sitting politician, it interfederate their ability to perform their job. I mean that would be the case in any political corruption case. Any sitting senator, any sitting governor, any elected official who was indicted for corruption obviously is going to be distracted in defending themselves from those charges and will not be able to fully devote their attentions to their
political position. So that seemed like an extremely strange reason, and certainly the Department of Justice has never before to my knowledge, used that as a basis not to prosecute a case, or in this case, to ask that the
case be dismissed at this time. What is absolutely significant here, as you mentioned June, is that clearly the Department of Justice has not made this decision based on the merits of the case, So they have never said that this case should never have been brought in the first place.
In fact, the Department of Justice went out of its way to say that the prosecutors who brought this case did not do anything wrong, They did not question the integrity of the prosecutors bringing the case, and they said that the case would be reevaluate it after the election. So this was, according to the Department of Justice main justice, not a decision based on the merits of the case or the legal theory upon which this prostitution was brought.
The decision was made to sophistic case at this time because of the fact that it would interfere with the election and that it would in some way impede the mayor's ability to continue to act as mayor while he's fighting these charges.
Also unusual. Under the terms of the memo, Adams will have to agree in writing that prosecutors are legally allowed to bring the charges again if they decide to after the mayoral election, so the charges would be dismissed without prejudice.
Well.
In order to effectuate this directive, a couple things have to happen. First of all, the acting US Attorney in the Southern District will have to agree to direct her staff to go to court and to dismiss the case.
And it's a dismissal, as you say, without prejudice, which means that the government does have the ability to bring the case again if they want to at some point in the future, and that the defense here would have to agree that it's a dismissal without prejudice, which they clearly will, because a dismissal even without prejudice is better than having the case proceed So the next thing that will have to happen, even after the prosecutors take the
case to court and request the dismissal without prejudice, is that it has to go before the judge and the disrecord. Judge has to agree to the basis for this dismissal. Now, the judge could in fact even hold a hearing and make prosecutors put on the records the reason for taking this unusual step and dismissing this case without prejudice at this time and in theory, the judge could reject the motion by the prosecution to dismiss the case without prejudice.
But as a practical matter, the judge really can't stop the dismissal from proceeding because of the Department of Justice. Says judge, We're not going to pursue this case this time. There's no one to prosecute the case. Even if the judge believes that the dismissal is ill advised.
The task of carrying out the order will fall to Danielle Sassoon, who's the acting US Attorney for the Southern District. She's been at the US Attorney's Office since twenty sixteen
as an Assistant US Attorney. She was part of the team that prosecuted Sam Bankman freed, and she'll have to make this decision whether or not to drop the charges, despite the fact that in early January prosecutors had told the court that additional charges would be coming and that investigators had continued to uncover additional criminal conduct by the mayor. But I assume she either drops the charges or she's fired.
Well, she's put it in a difficult position, but ultimately I think she has to follow the directive from Nain Justice, from the Acting Deputy Attorney General to dismiss the case because if she doesn't do it, then somebody else will. So ultimately its case is going to be dismissed because
that's the directive coming from Washington. The other thing that the memo said in directing the Southern Distric to drop the case was to say that not only are you dismissing the case without prejudice, but also that the Southern District was to take no additional investigative steps at this time again until after the election. So what's interesting here is this.
Is not a merit based decision. The Acting Deputy Attorney General made clear that the decision to ask that this case be dismissed at this time has nothing to do with the merits of the case, with the wisdom of bringing it in the first place, with the legal basis upon which these charges are brought. It was being done because, according to the Department of Justice, it was interfering with
the election. It was brought nine months before the primary, which is a significant amount of time before the primary. But the case, of course, has extended not only through the primary season but now into the mayoral election itself
and will no doubt have some impact on the election. Ironically, the dismissal of this case may also have an impact on the election, because I think we will see and have already begun to see, that those who are challenging Mayor Adams are using this dismissal as a way of arguing that he is now beholding to the Trump administration, and some of them have actually called for him to
resign under the circumstances. So ironically, a decision that was made in order to try to remove political influence from the election is at the same time also injecting an air of political influence into the election by dismissing the case at this time.
For months, Adams has been making overtures to Trump, including flying down tomorrow lago going to his inauguration, and he told top officials this week that they shouldn't criticize the Trump administration or interfere with federal immigration authorities arrests on city property, that's according to the city. And now this threat of renewed prosecution is going to hang over him.
Well, certainly that's going to be the argument that's raised by those who are challenging him for the mayor's office in this election. So we will continue to see this issue as something that has an impact on the election, whether the case is dismissed or not, and ultimately it will be up to the voters to decide whether to
return may Or Adam's office or not. And after the election, it will be interesting to see whether the Department of Justice ultimately decide to reinstate this case, as they have the ability to do, to file a new indictment and perhaps even bring additional charges.
Here the Southern District, it's one of the most prestigious US Attorney's offices in the country, has a reputation for independence from Maine Justice, sometimes referred to as the sovereign district and a history of bringing public corruption cases. What does this memo say about the future of that office under Trump.
Well, it's really hard to say exactly where this is headed, and if we will see other instances of Main Justice trying to influence and in fact directing US Attorney's office on whether or not to bring political corruption cases, and after they brought them, whether those cases should be dismissed. As you say, the Southern District of New York has a history of being fiercely independent, even more so than
other US Attorney's offices around the country. But as a general rule throughout the years, the Department of Justice has allowed the US Attorneys in the various districts around the country to be fairly independent in making decisions about which cases to bring, an even when it comes to political corruption cases, although those have always historically been elevated to Washington to take a look at those cases before they're brought.
It'll be interesting to see what the judge says here. Thanks so much, Bob. That's Robert Mints of maccarter and English coming up next. Will non citizens be able to vote in New York City elections? This is Bloomberg.
There is something exceptional about this particular law, right. I mean, this is the argument in the briefs that this is going to expand on both sides. This is going to expand the franchise to a very large number of individuals, may indeed change the political representation in particular districts. Yes, this is not like some other little process.
And that exceptional law made New York City the first major US city to grant non citizens the right to vote in municipal elections in January of twenty twenty two. But the law, which was approved by the Democratic led City Council, has never been implemented due to court challenges by Republicans, and both a trial judge and a state depellate court ruled that the law violated the state constitution and a legal requirement to hold a public referendum on
the proposal. Today, the seven judges on New York's highest court heard arguments about whether to uphold the law. The arguments focused on how to interpret specific constitutional language and how to define words like citizen.
How do you define citizen under the constitutionistics?
Now, could the state allow my thirteen year old daughter and other thirteen year olds to vote for governor in the next election. Yes.
Joining me is immigration law expert Leon Fresco, a partner at Holland and Knight. He was the head of the Office of Immigration Litigation in the Obama administration. Lee and I just want to start with some basics because we heard Trump claim over and over and over again that not citizens we're voting in elections. So it is clearly illegal for non citizens to vote in federal elections.
The rule is that in federal elections, it is illegal for a non citizen to vote. And not only is that a crime and a crime that gets prosecuted every now and then, but it's also a ground for deportation. It's a question that's asked in every immigration form and in every immigration interview that somebody has for an immigration benefit, have you ever unlawfully voted in a federal election. So it's actually quite a serious thing that a person who's not a citizen cannot vote in a federal election.
But cities and municipalities can allow non citizens to vote in local elections. More than a dozen communities across the country, including eleven towns in Maryland and Vermont, have allowed non citizens to cast ballots in local elections, they.
Have theoretically the authority because elections are a state run thing other than for federal election purposes, and so a state or a locality, if a locality is permitted to do so by a state, can theoretically allow a person who is here who is not a US citizen to vote in their election, and it would just be up to that state or that locality to do so.
Se Leon tell us about this New York City law that was passed back in twenty twenty two but never went into effect.
So the New York City law that actually came into account says that if you are a lawful permanent resident or even someone with a lawful ability to work in the United States, meaning that you actually have a work permit from US Citizenship and Immigration Services, which is interesting because there are some statuses which are very sort of tenuous statuses like deferred action and temporary protected status, and even you can actually have an order of removal that
just can't be executed at the moment because the country that they want to remove you to won't actually accept you. And even those individuals are allowed to get work permits, and so the idea of the new York law is any of those people with work permits, even with such tenuous statuses, would be allowed to vote. Now, a purely undocumented person that is here illegally and has no right to work of any kind would not be allowed to vote under that law.
And you just have to be a lawful, permanent resident of the city for thirty days. So Republicans filed the lawsuit to stop the law from going into effect. What are their arguments against the law.
So essentially, what they're trying to say is that there are a few problems with the law. First, that the law violates the New York State Constitution, which actually says that citizens are the individuals who are permitted to vote in election. Now, there's fights and we can get into this about whether that meant New York citizens or US citizens and whether that's a floor or a ceiling. But their argument is that if you look at the New York State Constitution, that meant that only US citizens are
allowed to vote and nobody else. That's their first argument, and then their second argument is that the actual voting, allowing eight hundred thousand potential more people to vote in the New York City election would actually dilute the right to vote that the US citizens have in New York, which would then violate the municipal home rule laws in New York City.
I just want to note the specific language in the state constitution that a lot of the Republican arguments are focused on. It says, quote, every citizen shall be entitled to vote at every election for all officers elected by the people, and upon all questions submitted to the vote of the people. Seems pretty clear every citizen.
Right the question that they say. So, there's a couple of areas where the dispute is tried to be created. Here. The first argument is that is a floor of rights, meaning that what the Constitution is saying is, hey, state legislator, hey local legislators, you are not allowed to do anything to diminish the right of a citizen to vote in an election. But that that's not a ceiling, meaning that you can add other people to this from that perspective,
so you could add non citizens to this. That's one argument. And so the court in this oral argument was really trying to ask the lawyers, hey, does that mean a twelve year old or a thirteen year old can vote here? Where does this thing, go, I mean, does this really
mean what you're saying it means? And the Council for New York City I had to say yes because they wouldn't have had any to say anything else, Which is, if you're arguing that this is a floor, then that means that for a local election, the localities can add people and there's no limit basically to what they could add in that situation. So that's one side. Now the argument for the people opposing that is to say no, no, no, no no. If they wanted other kinds of people to vote,
they would have added them within this protection. So this is not a floor. This is actually both the floor and the ceiling, because it's just enumerating the people who can vote. The other argument is because it says citizens and not United States citizens, that this basically refers to a amorphous set of New York citizens who would basically be people who are just in New York for the
last thirty days. But I don't think the court was willing to accept that argument, and a very strong argument in favor of not accepting that argument was made by the opponents of this New York law, which said, look, if this really meant New York citizens and not US citizens.
And for the last one hundred or so years, there's been people who have been disenfranchised who we've not allowed to vote, who were constitutionally permitted to vote and protected to vote, because we've only been letting US citizens vote this whole time. But if this had really meant New York citizens, then anybody who'd been in New York for a certain period of time would have been allowed to vote too, And we didn't know this, so it can't have meant that.
There were also several questions about why isn't this a method that requires a referendum?
Well, I think the issue is if you're going to say if this was a problem that the people defending the New York City law were having in this argument was they kept saying, who gets to decide what the word citizen means? And they were saying that either the state legislature could decide it or the city could decide it, And the court was saying, well, can't we decided and aren't we the one who are supposed to make the actual decision about what the words of the constitution mean?
And so then there was this debate about, well, maybe you should be put up for the voters. But I think where the court is going to decide here is look, unless the Constitution is amended, which it can always be amended,
we are going to decide what the constitution means. And while it is unclear whether they will decide that the constitution sets a floor or whether they will decide that the constitution actually sets a floor and a ceiling, meaning that only the people listed in the constitution are the ones that can vote, meaning citizens, meaning US citizens, which
I think seems like it's slightly where they're headed. Nevertheless, I think they are headed there, and they're not going to say that this needs to be decided by a referendum, except to the extent that what they are saying is, look, if you want to change our ruling, have a referendum and decide this, and decide to change the constitution, bea be a referendum.
Yeah.
I just want to play that interchange because it was kind of amusing where the judges were saying, but that's our role, isn't it.
What definition would you ask this court to give? I would say that the legislature is in the best position to define a citizen because it is ambiguous and The reasons why are because.
The state how can the legislation legislature do that?
This is a constitutional provision.
So there's a constitutional provision with an ambiguous term and there's not enough evidence before this court to support a more restrictive or a broader reading.
Isn't that our role to determine what this language.
Is where there is sufficient evidence to support one reading and otherwise it.
Just goes to the legislature to determine what the state constitution means.
Well, when the provision is ambiguous and there's not enough evidence, we have.
Ever said that because the New York lawyer was saying that it is not up to the court to define what the constitution meant and the court that isn't that our role? Well, I asked, are we here other than to decide what the constitution means? So yes, the like or rather odd argument to make.
You don't want to be telling judges their role is superfluous. Stay with me.
Leon.
Coming up next on the Bloomberg Law Show, I'll continue this conversation with immigration law expert Leon Fresco. Though it was very hard to read this court from the oral arguments, we'll discuss how they might come out and what their concerns were. I've been talking to immigration law expert Leon Fresco about oral arguments today at New York's highest court over a law passed in twenty twenty two that grants
non citizens the right to vote in municipal elections. Leon, the courts below, the District Court and the Appellate Court, ruled against the law tell us about the grounds for their decisions.
Well. First, the lowest court found that it violated both the New York state constitutions, the New York State election law, and the municipal home rule law for the reasons that we've already talked about, which said, for the New York State Constitution, those words really only meant US citizens, and there wasn't a floor that could then be added above that.
That was both a Florana ceiling that they guaranteed the right to US citizens, And the only reason that that's the only people they guaranteed the right to is because
that's the only people they wanted voting. So instead of flor Aana ceiling, the municipal home rule law because of this sense that there would be a dilution in the voter pool, because of the fact that non citizens could potentially make up more than fifteen percent of the electorate in future elections, which would be greater than the margin of victory in many municipal elections. So it would dramatically increase the pool of eligible voters and dilute the votes
of US citizens. So that was another route. And then there was also that the New York state election law was violated as well. Now the Court in the intermediate appeals said that the state statue wasn't violated. Still, the municipal home rule law and the New York State Constitution was violated in that case, so they agreed there. That basically comes down to the crux of Look, at the end of the day, the Constitution said that here who Here's who has a guarantee to vote, which is the
US citizen. And because of that, that means that that guarantee wouldn't have been given only to US citizens if they had wanted other people to be allowed to vote in that situation.
After the oral arguments, do you have any feel for which way the court might go?
Yeah, it seems very difficult to try to pin the court down as to where they were headed here. I mean, at the end of the day, there seemed to be at least one judge on each of the sides where it was clear that they had at least one judge that was going to vote in favor of the New York law, and there was one judge who seemed particularly hostile to the New York law. But that leads five other judges, and I really didn't get a good sense of where those five other judges were going to be
heading there. I don't think given where the potential implications of this are, which is that if you vote for this, then you're basically leaving the localities to again let twelve year olds vote, and let you know, all kinds of other people vote that wouldn't necessarily be allowed to vote normally in an election that I don't think they're going to want to open up the floodgates in this manner, but we'll have to wait and see.
Would you say that it would be more of a novel ruling and they would have to go sort of outside the box to uphol this law. In other words, it would be easier to strike it down correct.
You'd have to do much more verbal gymnastics in order to say that the non US citizens could vote in the New York City elections than you would just to affirm the principle that the New York Constitution meant that only US citizens could vote, you would have to make the machination that all of these qualifications that were put in were meant to be a floor, but that localities
could add more people. And then the question would be, well, why why would the constitution of the State of New York wanted to have had an ability for state elections to only be US citizens but somehow incorporate this principle that localities could add more kinds of voters that can't vote in the state elections. But there is where I think there really wasn't a good job of trying to
explain why would that be? Was that even contemplated, And if it was, why would it have been that they would have wanted different kinds of people or different pools of people voting in the local elections than in the state elections.
And for anyone who thought this was going to be kind of a raw, raw argument about why non citizens should be allowed to vote, it was nothing like that. It was so technical. I mean, they were parsing words to talking about the meaning of for example, method correct.
I think one they really wanted to avoid the sense that there was any political agenda behind their decision making process. So they really tried to approach this everybody, to their credit, from all the arguments and from all of the justices, to the real of the dictionary and of the interpretation, rather than in the realm of the political and as you know, making equitable arguments about why this is right, you know, why immigrants pay taxes, they should be allowed
to mote. None of that really was part of this. And so from that perspective, it's really going to come down to, well, what did the drafters of the New York Constitution actually intend? Which is really what it should come down to at the end of the day, because that's the job of the court is, here's a New York Constitution, here are the words. What did the people who wrote those words intended to mean when they wrote those words? And that's going to come down to it.
And I think if you really bring it down to that standpoint, it seems unlikely that they would have intended people who are not US citizens to be able to vote, because at the time this was written, this really wasn't a thing. There wasn't really Yet this process of you came to the country and you got a work permit or a green card or any of that, none of that existed back then. And so all of those are relatively new creations of the last not even one hundred years,
of the last seventy years. And so from that perspective, I just find it very hard to believe that they're going to think that this was incorporated somehow at the time of the writing of the New York Constitution.
Let's turn out to New York and sanctuary cities. And this has come up more recently because New York City Mayor Eric Adams is being given a pass by the Justice Department, and one of the big reasons, according to to the memo from the Justice Department, was so that
he could help the Trump administration enforce immigration laws. And also he apparently has told his staff, his top officials, according to the city publication, he's told them not to criticize the Trump administration and basically not to interfere with ice. I mean, is that how you read what he's been doing?
Well. I think that he has certainly expressed a desire to work with the Trump administration. He got a meeting with Tom Holman in New York. Tom Holman was a former New York police officer. He understands the city, he understands the politics. He had a meeting with Mayor Adams. Mayor Adams has certainly expressed, even before Trump was elected president, to be fair, an exasperation with the state of affairs in the city. In the city of New York. Unclear,
you know what the motivation was for the prosecution. Obviously, there are three sites to that story there, so I don't want to weigh in on that. Yes, at least three sites to that story, although I will make one personal editors though to say that at the end of the day, I don't know really, you know, in terms of all of the horrible things people have done in life, is what he was accused of doing didn't seem to be one of the more horrific things you've ever heard
in the history of humanity. So, at least from that perspective, there was some argument to be made one way or the other about whether this was a useful case to bring forward in the grand scheme of everything that happens in politics. And so from that perspective, if there was a belief that this was going to be the best possible person for this administration to work with with regard to enforcing the laws of the Immigration Court New York City.
Then I think from that perspective, baby, an outcome was reached that, at least from the Trump perspective, in the mayor's perspective, made sense. Now, what does that mean for
the average undocumented person in New York unclear? Because New York certainly still has sanctuary state laws and sanctuary city laws that do not allow this kind of cooperation where Ice is allowed to go into the jails in New York, or where Ice can put what's called an administrative warrant and say to a state or local jail, hey, just hold this person here for a day or two extra while we get our resources together to come pick them up.
New York doesn't currently accept those kinds of requests, and they would still just release people in that situation. And if Ice doesn't get them, well, that's the way it is.
And so what will make your atoms do? I think? Basically, the only thing that I think is within his authority if he's not going to be held to account for violating the state laws and the local laws, is to basically say, look where there are operations in place to actually catch people, help them, help the federal officials touch people, you know, you know, don't let people interfere with ices operation,
protect the ICE officers, that kind of thing. And I do think at least if the city officials are doing that, that is, from ICE's perspective, more helpful than if they don't have that support.
But isn't that against the New York City sanctuary policy? And the way New York has been operating until this point was you know, if an ICE officer comes to a school, let's say, show me your warrant and let me call a lawyer right now. So I mean, isn't that against the sanctuary city laws?
So the actual technical sanctuary city policies are twofold. Number one, not to let ICE into the jails of the states and the cities where they could go look for identifying undocumented people or people that could be deported, and not accepting the detainers of ICE saying hey, hold on to this undocument the person while we can come and try to pick them up, so that they would have to
actually hold people, So that's part of it. And then also not enforcing the immigration law themselves, meaning the police officers of the state of New York and the cities within New York. They are not allowed to arrest people like you'll see this in some cities around Red States. The local officers will arrest people and then they'll say, you just wait one minute, we're going to call licensee if you're here legally. And the Supreme Court has permitted
that in Arizona versus the United States. That was the one thing that was allowed under that case. Everything else was not allowed. But that is allowed, and so New York is not allowed to do that either. But what I was saying they can do is sometimes you go on some of these enforcement operations and people might be very violent toward the ICE agents, or they might be creating a commotion or a scene or something like that.
And so the New York law enforcement officers can protect the ICE officers in that situation, or they can, you know, say hey, we're not gonna we're not gonna intervene here in a way that helps the local people avoid deportations. So let's say a school calls the police and says, hey, get these ICE people out of here. They're not going to do that. That kind of thing.
We'll have to see how it all plays out, at least in New York City. Thanks so much, Leon. As always, that's immigration law expert Leon Fresco of Honda Night. And that's it for this edition of The Bloomberg Law Show. Remember you can always get the latest legal news on our Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify, and it www dot Bloomberg dot com, slash podcast Slash Law, and remember to tune into The Bloomberg Law Show every
weeknight at ten pm Wall Street Time. I'm June Grosso and you're listening to Bloomberg