The resignation of Acting US Attorney Danielle Sassoon and her colleagues draws a line in the sand between politics and prosecution
Rick Blaine did not get on the plane. Sydney Carton did a far far better thing than he had ever done before. Thelma and Louise hit the accelerator. And Interim United States Attorney for the Southern District of New York Danielle R. Sassoon resigned. Sometimes the narrative ends in a way that vindicates our ideals and principles.
In the world of the movies, at that moment, the proverbial curtain is dropped.
But here, in the real world, the drama goes on. So what next?
For those looking for historical precedents, the Saturday Night Massacre of October 20, 1973, is the obvious analogue. And indeed, with the dominoes of resignations that have followed from Sassoon’s departure, our current crisis is now being dubbed the Thursday afternoon massacre.
President Richard M. Nixon, hounded by the intrepid, subpoena wielding Special Prosecutor Archibald Cox, ordered his firing. Cox was seeking certain White House tapes that would ultimately prove to be Nixon’s undoing. It took two refusals and two resignations by Department of Justice Officials (Eliot Richardson and William Ruckelhaus) until Solicitor General Robert Bork did the deed. Cox was fired. Eventually, the case made its way to the Supreme Court, which ordered compliance with the subpoena. Faced with a constitutional crisis of the White House’s making, Nixon chose to end the drama and handed over the tapes, leading to his resignation.
Those of a cynical bent might argue that in the Adams/Trump case the resignations are for naught. Why? Because the smart money says that the criminal case against Mayor Eric Adams will not move forward. So why bother to resign and why walk away from the various awards and emoluments that the president might bestow upon his supplicants?
Because there is a crucial and sacred line between politics and prosecution and duty and dishonor. The resignations may not be able to stop the unethical behavior of this Justice Department or its attempts to erode the justice system. But they are a dramatic reminder to the public and the president that the line exists – and drama matters when the president and his men have turned the courtroom into theater. The latest (at least at this writing) prosecutor to resign, Hagan Scotten, put it succinctly. After nodding to his own conservative views (in addition to being a Harvard Law graduate and a Supreme Court Clerk to Justice Roberts, he served three combat tours in Iraq):
I can even understand how a Chief Executive whose background is in business and politics might see the contemplated dismissal-with-leverage as a good, if distasteful, deal. But any assistant U.S. attorney would know that our laws and traditions do not allow using the prosecutorial power to influence other citizens, much less elected officials, in this way. If no lawyer within earshot of the President is willing to give him that advice, then 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.
That is a line apparently gleefully overstepped by Trump and his people: the letter ordering Sassoon to dismiss the case was artlessly blunt in noting that the order to dismiss had nothing to do with the facts or the evidence. And the concept that prosecutors might be concerned about good faith and properly carrying out their duties was ignored or forgotten. Instead of legal standards and sober evaluation of the facts, the letter’s only fuel was bare-knuckled political tactics. This was the quid pro quo coerced by the power of the chief executive — a dismissal without prejudice in exchange for Adams’ abdication of independence in making policy decisions for New Yorkers. The “without prejudice” left no doubt about the risk to Adams were he to fail in his part of the bargain — the case would be reinstated.
Within a day of Sassoon’s resignation, the Trump forces came to collect on their bargain: ICE director Tom Homan in an argot that seems native to this administration said: “I'll be back in New York City and we won't be sitting on the couch. I'll be in his office, up his butt saying, 'Where the hell is the agreement we came to?'"
There is a crucial and sacred line between politics and prosecution and duty and dishonor.
Of course the problem with this kind of extortion, even among willing parties, is that it is uncontrollable (it doesn’t just stop with the one act that was to be the “quid”) and unending (the hostage is powerless until his minder decides he has no use).
The disturbing descriptions of how that agreement was coerced is all too evocative of another time and place when the rule of law was overwritten by personal dictates and political desires. After the resignation of Sassoon and her chief deputy, five members of the DOJ’s Public Integrity unit in Washington to whom the case was transferred in order to avoid the New York office’s “insubordination,” also resigned. The rest were locked in a room under threat of firing until one stepped forward to save the rest. There will always be a Robert Bork. But in this case, it is not a high-ranking official but apparently a line lawyer who raised a hand to save his or her fellows from dismissal. It is an act that deserves at least a little sympathy.
What happened in that room is about as antithetical to the high ideals to which prosecutors must hold themselves as can be. Justice Robert Jackson’s famous exhortation to prosecutors assembled in 1940 in the Great Hall of Justice for the second annual conference of United States Attorneys is one that every Southern District prosecutor knows well : “[T]he prosecutor at his best is one of the most beneficent forces in our society and when he acts from malice or other base notices, he is one of the worst.”
Of course, this exhortation figured in Sassoon’s letter to the Attorney General. And then came back again, in Bove’s excoriation of her, though in Dorian Gray distorted form.
(Reading Jackson’s words again, I was struck by his innocence and optimism as he described the newly passed Hatch Act: “The federal prosecutor has now been prohibited from engaging in political activities. I am convinced that a good-faith acceptance of the spirit and the letter of that doctrine will relieve many district attorneys from the embarrassment of what have heretofore been regarded as legitimate expectations of political service.” Perhaps fitting that Sassoon’s resignation came on the anniversary of Jackson’s birthday.)
Most lawyers believe that the Adams case will end with a dismissal. It will be painful. A dismissal motion usually explains how the dismissal serves the interests of justice (a “nolle prosequi” filed by the government) and requires “leave of the court.” In the before times, just about every nolle was issued because a defendant had died, a critical witness had become incapacitated or something was seriously and irredeemably flawed with the government’s case. Obviously, none of those factors are present here. The express explanation for seeking the dismissal is truly novel. The Department of Justice will be informing the court that dismissal (without prejudice) is necessary given the needs and desires of the president to pursue certain policy objectives in the City of New York. That’s a new one in the annals of American criminal justice history.
A judge is not a potted plant. And as Sassoon noted in her letter requesting to meet with the Attorney General to talk through the case, this judge will surely conduct a “searching inquiry” of the prosecutors seeking the dismissal. As Sassoon drily noted: “the court is unlikely to acquiesce in using the criminal process to control the behavior of a political figure… Nor is there any realistic possibility that Adams's consent will prevent a lengthy judicial inquiry that is detrimental to the Department's reputation, regardless of outcome.” Presumably, the judge will want to understand why an indictment returned by a grand jury is now being placed on hold to assist the president with his deportation efforts. To acquiesce in this sort of flummery is to embrace the notion that we are not a government of law but of one man.
Even with the embarrassing (to Trump) hurdles that lie ahead, it is likely – given case law governing how little authority the court has, in fact, to deny “leave” – that the case of Unites States v. Eric Adams is all but over. But how many more prosecutors will resign or be fired? Will the federal district judge hold the Department of Justice’s feet to the fire under the all-but-inevitable threat of impeachment?
Those who believe in the integrity of the United States Attorney’s Office for the Southern District and the United States District Court for the Southern District understand that principles matter. Danielle Sassoon’s resignation was a distilling moment of principle. Dark times require acts of integrity and inspiration. How you leave the stage can provide not just hope but a possible path to re-enforcing justice and the rule of law.