Seizures and Investigations and Resignations, Oh My!

Mayor Eric Adams’ administration is embroiled in at least four corruption investigations. It’s hard to keep track of them, and at this point, all the public knows from official sources is that phones and other personal effects of various high-ranking officials have been seized, and search warrants have been executed on some officials’ houses as well as at NYPD headquarters.

How do federal corruption cases against local officials take shape behind the scenes? What could be going on in the offices of the FBI and U.S. Attorney? How high is the bar for proof if and when investigations yield concrete criminal charges?  

We asked Daniel Richman to bring some clarity to the confusing moment. Richman, a former federal prosecutor in the U.S. Attorney’s Office for the Southern District of New York (the same office at the center of the current set of investigations), is the Paul J. Kellner Professor of Law at Columbia Law School.

1. Almost a year ago, the FBI stopped the mayor on the city streets, asked the mayor’s security detail to step aside and took the mayor’s phones and iPad. How unusual is this? Is this a decision the FBI makes by itself? And why don’t we know anything more about what’s happened with the mayor since? Is it unusual for them to leave public figures twisting in the wind like this?

Seizing phones is becoming increasingly common in investigations. Just last month, the FBI took the cell phone of a Tennessee congressman; in 2022, it seized the phone of a Pennsylvania congressman. More and more often, politicians, like many others, are using encrypted communication apps to carry out conversations, which means the only way for law enforcement to get a window into those interactions is to physically obtain the phone. It’s worth pointing out that the use of these apps is not itself a sign of nefarious dealings. We’ve evolved to a very weird spot where people’s default communication even for what to buy in the grocery store is over an encrypted app that law enforcement usually can’t access without getting into a device. Stopping someone on the street to seize his phone may sound particularly aggressive, but the ease with which chat histories or apps can be deleted means that agents must be in full control of the situation when they grab a device.

It wouldn’t have been done lightly in this case — high-ranking officials in the U.S. Attorney’s Office and quite possibly in the Justice Department would’ve been involved, since it publicly signals both an intense investigative focus on a high-ranking official, as well as a lack of confidence in his ostensible cooperation. A judge needs to grant a warrant, which means the FBI and federal prosecutors would have to have shown probable cause to believe that the phone contains evidence that a crime has been committed.  The FBI field office would not and could not have acted without the U.S. Attorney’s office and the FBI would quite likely have consulted with its headquarters in Washington.  

There’s nothing strange about there being silence from prosecutors a year after a phone seizure. Corruption investigations can take some time, as evidence gets seized or subpoenaed and new witnesses, often worried about their own criminal liability, come forward. Everyone should understand that the devices could have contained important evidence in the case, perhaps inculpatory — meaning, suggesting guilt — and perhaps exculpatory — meaning, suggesting innocence. Or they could have revealed nothing of value. Or they could have opened up entirely new lines of inquiry, or some combination of these. We just don’t know.

2. Is the level of proof that federal law enforcement and prosecutors in the U.S. Attorney’s Office need to produce higher if the target is the sitting mayor or another visible and prominent elected official? Are there any guidelines from the Department of Justice that constrain indictment when there is an upcoming election?

The level of proof required is equally high for anyone, public official or ordinary citizen: proof beyond a reasonable doubt.

Now it’s true that the mayor is a public official who’s seeking a second term, and that there are studiously vague Justice Department guidelines about bringing charges and affecting elections. Those say the following:

Federal prosecutors and agents may never select the timing of any action, including investigative steps, criminal charges, or statements, for the purpose of affecting any election, or for the purpose of giving an advantage or disadvantage to any candidate or political party. 

The DOJ isn’t supposed to intentionally put its thumb on the scales of an election. 

That said, you could easily imagine a prosecutor thinking, “I owe it to the public to clear this up before the election.” You could also envision a prosecutor thinking, “I ought not to be in any way a player in this, and silence is best.”

But rushing an indictment has risks and isn’t a very good idea in any case. 

And announcing that there won’t be charges — as occurred in 2017 when, even while criticizing his actions, prosecutors announced that they would not charge Bill de Blasio — has its own risks, as was brought home when Jim Comey had to choose in 2016 between correcting the record by announcing that the Hillary Clinton investigation that he had declared closed was being re-opened, or remaining silent about that re-opening.

3. Are the FBI and U.S. Attorney’s Office definitely in lockstep? The NYPD and District Attorney’s Offices sometimes aren’t.

The federal situation is a bit different from the local one because the police and the DA each have a different mechanism of political accountability. You have an DA elected, in New York, by the voters in one borough working with a police department that is reporting to a mayor chosen in a citywide election. So, you’re more likely to have some degree of creative disagreement, perhaps friction, and sometimes even conflict.

You’ll sometimes see that same dynamic between the FBI and the U.S. Attorney’s Office. They are both components of the Department of Justice, but particularly the Southern District U.S. Attorney’s Office and the New York Field Office of the Bureau treasure their independence. Still, each knows that it can’t do anything without the other. They will work very closely together, particularly in a corruption case, because the Bureau cannot pursue these cases without, at various points, the full cooperation of the U.S. Attorney’s Office, whether to obtain search warrants, to put people in a grand jury or to arrange plea deals with witnesses. So it’s highly likely that you have coordinated decision-making by both the Bureau and the U.S. Attorney’s Office.

4. There’s been a lot of talk about how the courts have recently moved goalposts in defining quid pro quo corruption crimes. What’s that all about, and is it relevant in this case? Relatedly, what makes this kind of corruption a federal crime instead of a state crime? 

The Supreme Court has indeed tightened the standard for proving violations of honest service fraud — meaning, depriving the public of its right to the loyalty of its officials; Hobbs Act extortion — using official position to coerce payment; and the federal program bribery statute, which involves the corruption of programs that receive federal funds. These are the charges most likely to be brought in local corruption cases.

Though they have different names and particulars, they all boil down to forms of bribery: the idea that officials are taking something of value from someone knowing it is being given in exchange for an official act. Quid pro quo. It doesn’t matter if the official did not in fact follow through or even whether he or she actually planned to follow through. The “thing of value” could be a bag of cash, a campaign donation, a seat upgrade on a flight, almost anything, and the “official act” could be directing a government contract in the person’s direction, or some official approval of a project or potentially advancing some larger policy priority.

In those recent cases, the Supreme Court has ruled that there needs to be a very direct exchange of quid for quo. It isn’t enough for a person to give something and an official to get something unless there’s a transactional relationship between what was taken and what was given.

The standard is getting adjusted or refined continuously. We will learn more from Senator Bob Menendez’s appeal of his conviction for taking cash and gold bars to help the Egyptian government. Suffice it to say that prosecutors will have to be quite specific, whomever they charge, in establishing the exchange.

That said, Adams wouldn’t have to have literally been orchestrating a bribery scheme to be criminally liable. Knowledge as a general matter, without more, would not be enough for criminal culpability. But once he’s done anything to help, even the slightest thing, so long as he’s had a full desire to help the corrupt project flourish, he could be guilty of aiding and abetting or conspiracy.

Why isn’t this all happening in state courts? Well, all states have their own corruption statutes and New York is no exception. But the federal statutes I mentioned, as well as several others, have long provided a basis for federal enforcers to pursue local corruption. Even a zealous and capable district attorney’s office might not have the resources to take on these cases. And there is much to be gained when a second law enforcement layer that’s less entangled with local government is scrutinizing behavior.

5. Since the seizure of the mayor’s phone, there have been a number of other raids and seizures connected to people in Adams’ orbit. There appear to be four lines of inquiry, as reported in the papers: the mayor and possible favors related to Turkish campaign donations; possible misconduct surrounding the nightclub security business owned by the former police commissioner’s twin brother; a possible bribery scheme involving a consulting firm run by the brother of the schools chancellor and deputy mayor for public safety (who are themselves brothers); and possible wrongdoing related to the mayor’s Asian affairs liaison. What are the most serious potential crimes at issue, do you think, and how hard are these crimes to prove? 

The crimes are all essentially forms of bribery, and the seriousness turns on the extent to which an official has betrayed the public trust and the magnitude of the betrayal. File that under “to be determined” until we hear more from prosecutors.

Should these ostensibly separate investigations reveal a through-line connecting them all, prosecutors will have the option of bringing RICO charges; the acronym stands for Racketeer Influenced and Corrupt Organizations. The main advantage of RICO in such a situation is that it provides a broad evidentiary framework for showing how a variety of corrupt people and activities support one another.

6. How does the investigative activity and what’s known and not known about the investigation affect the ability of the city to govern? For example, might the feds be less likely to cooperate with the NYPD or brief them on sensitive information? Practically, is it possible that the mayor and his associates may be so tied up in working with their lawyers that they have less time for city business? Are there other conflicts that this raises?

Criminal investigations can be very time-consuming for those who are being investigated, especially if they wind up formally charged. I can’t speak to what that feels like inside a mayoral administration, including this one. I don’t know how they work.

One could imagine that a mayor’s hostility to being investigated could be pushed downward to subordinates, but I wouldn’t assume that. The NYPD and the Department of Investigation, to take two important examples, have long worked closely with federal officials on joint investigations and task forces, and I would not assume that anything has changed operationally,

7. What do you make of defense attorneys insisting none of their clients are targets?

One possibility never to be disregarded is that they could be lying. More likely: As a general matter, the government will for quite some time tend to call someone a subject of an investigation rather than a target of an investigation. And one could be a subject for quite some time as the government builds its case. Then, after the indictments have been drafted, you’ll become a target.