The Mayor, the U.S. Attorney and the President: A Conversation with Zachary Carter

Eric Adams has been indicted for allegedly accepting bribes and taking foreign campaign contributions from straw donors, but the fate of the criminal prosecution may not only rest on the strength of the government’s evidence and the quality of his defense. According to the New York Post, “A Trump win in the 2024 presidential election is viewed by some in Adams’ camp as a potential path to legal victory for the mayor against an unprecedented federal indictment.”

That reporting came before Republican nominee Donald Trump appeared at the Alfred E. Smith Memorial Foundation Dinner, where he sympathized with Adams’ claims that he is being targeted in part for his criticism of Biden-Harris immigration policy. “I know what it’s like to be persecuted by the DOJ for speaking out against open borders,” said Trump, referring to the Justice Department. “We were persecuted, Eric. I was persecuted, and so are you, Eric.”

Could a change in administration really result in the federal government dropping its case? We asked Zachary Carter, former U.S. Attorney for the Eastern District of New York, to explain the legal and political lay of the land. This conversation has been edited for length and clarity. 

The mechanics of prosecutions

Vital City: How do U.S. attorneys make decisions about how to prosecute? To what extent does that involve “Main Justice,” meaning the office of the Attorney General in Washington, and to what extent does that involve the president?

Zachary Carter: There are cases that are sufficiently routine that a U.S. attorney has the functional autonomy to bring them without consultation with the Department of Justice in Washington. Then there are categories of cases that require consultation. A public corruption case at a significant level of government under certain circumstances will require that you consult with the department or its appropriate division. To some extent, it depends on the U.S. attorney’s office. There are some offices that are larger and better established than others and have well-established reputations. The amount of consultation required of those offices may be different than some others.

VC: You were U.S. attorney in the Eastern District of New York, which comprises Brooklyn and Queens, and Nassau, Richmond and Suffolk counties. The case against Mayor Adams is being brought by the Southern District, which comprises Manhattan and the Bronx and Westchester, Rockland, Putnam, Orange, Dutchess and Sullivan counties. The Southern District is sometimes referred to as the Sovereign District. 

ZC: Well, certainly in the past there was a significant deference to the Southern District. I know this may be a parochial point of view, but the Eastern District in terms of its relationship with the Department of Justice in recent decades has pretty much caught up. And as you’ll notice, the first of those two districts to actually produce an attorney general of the United States was the Eastern District, not the Southern District. 

I think that in the case of either of those districts, there’s going to be just as a practical matter, a certain amount of deference — because they recruit really top-notch lawyers who have substantial experience and who have produced positive results time in and time out.

What Trump could do

VC: What might change after November if we get a new president in Donald Trump?

ZC: First of all, with respect to the position of attorney general, who oversees the entire Department of Justice, it is most often the case that the outgoing AG resigns effective on either the end of the year or the date of the inauguration. At that point, traditionally the deputy attorney general of the United States is designated by the new president to be the acting attorney general of the United States until whoever he nominates for the position of a permanent attorney general is confirmed by the U.S. Senate. 

For that reason, if Trump were elected, his ability to immediately impact pending prosecutions as a practical matter may be limited. As you’ll recall, when Trump was elected in 2016, Loretta Lynch left and Sally Yates, her deputy, became the acting attorney general of the United States. She didn’t simply do Trump’s bidding. Now, for better or worse, I think personally for worse, Donald Trump thinks that dedicated career public servants are somehow evil saboteurs. He calls them “the Deep State.”

If Trump is elected again, he will be much better prepared to address what he perceives as a problem than he was back in 2016. If the folks who drafted the highly ideological conservative playbook Project 2025 have put in as much effort in focusing on the transition at the Department of Justice as they have to a lot of other areas, they may have already begun to try to identify senior folks within the department who might be more acquiescent to Trump’s designs than some others.

VC: Eventually you’d have Senate approval of a full-fledged new AG.

ZC: Right. But let’s not skip over the confirmation process which is going to be absolutely critical if Trump is elected. A lot depends on who will control the Senate, right? Even if Republicans control the Senate by a bare majority, there are some candidates that Trump could propose who might not get the requisite votes they need, even from Republicans. 

So those hearings are going to be critical because even when you lose the battle, you can sometimes win the war in terms of the court of public opinion.That can have a positive effect on the decisions that a president makes. So if a nominee for attorney general is really put through his or her paces by senators in the Judiciary Committee about whether they would be inclined to follow certain directions from the president that may be extra-constitutional or flat-out illegal, and whether that person is forthright in their answers or not, just the asking of the question and forcing the candidate to answer could have some impact on how the affairs of the department are conducted by whoever finally gets through that confirmation process.

VC: That’s the attorney general in Washington. Then, also part of the Department of Justice, there are 93 U.S. attorneys. By tradition, they’re usually asked to resign at the start of a new administration, particularly when it’s a different party. In 2017, Trump was the new president but then-Southern District U.S. Attorney Preet Bharara refused to be forced out because he was in the midst of some prosecutions that he wanted to make sure continued. Can you explain how that process works?

ZC: Well, it is very difficult for the Department of Justice to monitor all of the ongoing prosecutions in each of the 93 U.S. Attorney's Offices. So routine prosecutions will just continue apace. There will be an attempt to probably assert some control with respect to higher-profile pending prosecutions, particularly those against people for whom the new president might have some sympathy like our mayor. But like the attorney general, the U.S. attorneys each have to be confirmed by the U.S. Senate. 

And my guess is that certainly if the Democrats retain the Senate majority, the administration is really going to be put through its paces. And each individual candidate who’s proposed to be a U.S. attorney is going to be examined pretty closely in terms of their own personal philosophy about how a U.S. attorney’s office should be conducted, and to what extent politics should or should not be considered in making decisions about who to prosecute or what to prosecute.

VC: Let’s imagine for a moment that, instead of Damien Williams, a U.S. attorney gets in who is sympathetic to the idea that Eric Adams should not have been prosecuted. Let’s assume that the U.S. attorney and Main Justice are on the same page. Can the case simply be dropped?

ZC: It can be dropped. That would be the prerogative of the U.S. attorney.

VC: Does it matter how far along the prosecution is? 

ZC: It really depends on the profile and the evidentiary strength of the case. And quite frankly, that may be the most important issue as a practical matter, no matter how hostile Trump might be to a prosecution. If an assessment of the evidentiary strength of that case suggests that it is a slam-dunk winner for the government, it makes it more difficult for Trump to justify encouraging the attorney general of the United States to drop the case.

How strong is this case?

VC: Do you have an opinion of the evidentiary strength of the case against Eric Adams?

ZC: I only know what I know from reading the indictment and from press reports. And from that, it looks like a significant number of people inside and outside the administration are already cooperating witnesses. Just the nature of the narrative suggests access to inside information. So the government seems to have witnesses who can give a first-hand account of a lot of the critical issues in the case. 

The most challenging part of the case, because of recent Supreme Court cases, is proving the bribery part. But my guess is that, from the point of view of the Southern District, that may be the least important part of the case, even though it’s more sensational. Because the law is pretty straightforward on it being illegal to accept campaign contributions from foreign nationals. And the evidence that Adams’ administration accepted or encouraged contributions from foreign nationals seems to be pretty straightforward. And that act of accepting those foreign donations is compounded and aggravated by the use of straw donors. We’re talking about him having created for himself a substantial advantage over the people he was running against.

VC: There has been speculation that there could be a superseding indictment filed at some point soon. I know there are protocols and guidelines with respect to presidential candidates or even Senate and House candidates in the run-up to an election. Eric Adams himself doesn’t face reelection until next year, assuming he stays in office. But what would be the internal conversations and sensitivities regarding a possible superseding indictment in the waning days here before the election?

ZC: I don’t think the election would have an impact at all as a practical or political matter. As you pointed out, Adams’ reelection really begins in earnest next year. And the fact that it has become an issue in the presidential race really should have no consequence for this prosecution. 

I know the mayor seems to be determined to mimic the Trump playbook in terms of claiming political victimization and invoking race as an issue. But by my count, there are three offices involved in investigations affecting Eric Adams and his administration. There’s the Southern District of New York, which is headed by an African-American man. There’s the Eastern District of New York, which is headed by an African-American man. And there’s the Manhattan DA’s Office, which is headed up by an African-American man. 

As long as prosecutors make their decisions on the merits, I don’t think they need to be concerned about timing. 

Brass tacks: What’s likely to happen?

VC: What do you think Trump’s likely to do about this prosecution if he wins in November? Do you think he’s inclined to want to stop this prosecution? Does the first Trump administration tell us anything interesting about his approach to public corruption cases?

ZC: I think that from 2017 to 2021, the U.S. Attorney’s Offices for the Southern and Eastern District of New York kept their pedal to the metal in official corruption cases. And I don’t think there was a lot as a practical matter that the Trump administration could do about it because, when cases have merit and there is substantial evidence supporting the indictments, it is tough politically to defend pulling the plug on those cases. At the end of his term, Trump used his pardon and clemency powers freely to give relief to some people who under most circumstances wouldn’t be regarded as deserving of it. But that was his prerogative. It’s far easier to accomplish that than pulling the plug on well-founded prosecutions.

Trump is so unique. It’s kind of hard to fault the media for not getting everything absolutely right in terms of dealing with somebody whose brazenness and conduct is just unprecedented. But like Maya Angelou is often quoted as saying,  “When people show you who they are, believe them.”

So, what kind of influence is he going to have on his attorney general in terms of what cases are worthy of prosecution and what cases aren’t? He’s a person who gave contributions freely to both Democrats and Republicans long before he ran for president, because I think he has a cynical belief that money talks.

VC: Let’s suppose for a second that Trump wins in early November. We then have a transition period between then and when he actually takes office on Jan. 20, 2025. Does that period become especially important for U.S. attorneys worried about cases possibly being scrapped by the new administration?

ZC: There are going to be individual situations in which a U.S. attorney who believes they have a prosecution-worthy case is concerned about how the next administration will view it, but cases have their own timetables. It’s not as if a case that’s been scheduled for trial in the spring can be advanced to being tried on Jan. 19. As a practical matter, that’s just not going to happen. So there’s kind of a limit on what US attorneys can do with pending cases. Any decisions that were made with an eye on the political calendar, those decisions have probably been made months ago.

VC: You oversaw a number of high-profile public corruption cases when you were U.S. Attorney. To what extent did politics ever enter your mind or the minds of your prosecutors?

ZC: I can only think of one time when politics affected my decision. There was an investigation of the process by which state parole decisions were made and whether or not there had been bribes paid in order to affect parole release determinations. This happened on Governor George Pataki’s watch, and there was concern about whether or not he was implicated in this bribery scheme. The clock was ticking in terms of his reelection.

There came a point in our investigation where it was clear to me that not only did we not have any evidence implicating Pataki, but all things pointed against the likelihood that he was personally implicated. And so I made the determination that I should announce the end of our investigation, insofar as the governor was concerned, in the interest of fairness.

VC: Adams has suggested that his race may have something to do with the fact that he’s being pursued. Some people of goodwill believe there are different rules by which Black public officials are judged in corruption cases. What do you say to people who might have this impression?

ZC: I have to say that just hasn’t been my experience. I understand the concern though, and it’s something that deserves close scrutiny. And it’s worth noting that each of the three prosecutors’ offices conducting investigations concerning the current administration are headed by African-American men.