The Quid Pro Quo, Redux

Alert readers will recall that back in February, there was considerable  disagreement aired here on the VC about whether or not the DOJ’s decision to drop (at least temporarily) the criminal charges against NYC Mayor Eric Adams involved a “quid pro quo,” something like:

“Use your mayoral powers to give federal immigration agents greater access to NYC facilities (such as Rikers Island and other prisons) (quid) and we won’t prosecute you for bribery and corruption (quo).”

It seemed abundantly clear to me—bordering on the obvious—that there was such a quid pro quo,[1] whether or not it had been expressed out loud or merely, as Justice Kennedy put it once, with “knowing winks and nods.”[2] As District Judge Ho put it, in his opinion dismissing the indictment[3]:

“Everything here smacks of a bargain: dismissal of the Indictment in exchange for immigration policy concessions.”

Josh Blackman and Paul Cassell, however, thought otherwise.[4]

This question (of whether there was an improper quid pro quo) has come up once again, in a rather interesting and unusual context: a case in NY State court, Council of the City of New York v. Eric Adams in his official capacity as Mayor. As the caption indicates, Plaintiff is the NY City Council – the city’s main legislative institution – and it is suing the current Mayor, seeking to nullify an Executive Order that the Mayor issued six days after the case against him had been dismissed.[5] The E.O. in question (E.O. 50) authorized the NYC Department of Corrections to allow federal ICE agents to conduct operations, and to maintain a permanent presence, at the Rikers Island detention facility.

The Council’s claim, basically, is that

• Adams had a “personal or private interest” in the subject matter of the E.O. because of the deal he had made with federal prosecutors (“cooperate or we’ll prosecute”);
• Because of that personal or private interest, he was required to recuse himself from the matter at hand; and
• Under NY law, a failure to recuse oneself from taking action in which one has a “personal or private interest” renders the action null and void.

The court – NY Supreme Court[6] – issued a TRO in late April, enjoining the City from implementing EO 50, and then, last week, converted that into a preliminary injunction to the same effect. On the quid pro quo question, the court found:

“[The City Council] has shown a likelihood of success in demonstrating, at a minimum, the appearance of a quid pro quo whereby Mayor Adams publicly agreed to bring ICE back to Rikers Island in exchange for dismissal of his criminal charges.  This showing is grounded in

Mayor Adams’ public statements;

Mayor Adams’ criminal defense attorney’s written overtures to the DOJ;

The temporal proximity between these overtures and [DOJ's] directive to dismiss the criminal charges against Mayor Adams;

Statements from former Acting U.S. Attorney Danelle R. Sassoon and Assistant U.S. Attorney Hagan Scotten;

Homan’s statement that he will be “in [Mayor Adams'] office, up his b___, saying ‘Where the hell is the agreement we came to?”; and

The written findings by District Judge Dale Ho.”

I assume that this decision will be appealed by the Mayor, though I have no idea whether or not NY state law allows for appellate review of interlocutory appeals. Things could get interesting if the matter goes to trial.

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[1] My position [see here, here, here, and here] was (and is) that the DOJ’s motion to dismiss the charges without prejudice was an outrageous and improper attempt to use the threat of criminal prosecution as a means to pressure a public official into co-operating with federal immigration policies. District Judge Ho agreed; his opinion is here, and well worth a quick read.

[2] Evans v. United States, 504 U.S. 255, 274 (1992) (Kennedy, J., concurring in part and concurring in the judgment) (“The official and the payor need not state the quid pro quo in express terms, for otherwise the law’s effect could be frustrated by knowing winks and nods.”).

[3] Judge Ho did not decide whether there was, or was not, an unlawful quid pro quo (though I think it is fair to characterize him as deeply suspicious). He did ultimately grant the DOJ’s motion to dismiss the indictment against Adams, largely on the grounds that

“. . . the Court cannot order DOJ to continue the prosecution, and it is aware of no authority (outside of the criminal contempt context) that would empower it . . . to appoint an independent prosecutor. . . .

[T]he Court would be overreaching if it attempted to force this prosecution to continue. [A] court is not situated—either in terms of institutional competence, or as a matter of its proper role in our constitutional system—to make an assessment as to whether a prosecution “should” continue. A court’s role is to preside over cases, not to determine if a case should be prosecuted.”

But he denied the most odious part of the DOJ’s request: that the dismissal be without prejudice, which would have constituted a fairly obvious attempt to ensure Adams’ continuing cooperation in compliance with the underlying deal.

[4] For Blackman, see here and here; for Cassell see here and here.

[5] I know absolutely nothing about the principles of standing that apply in NY state court, but it does appear that this kind of thing is permitted under those principles (though it would be extremely unlikely to hold up under federal standing rules).

[6] As I’m sure most VC readers are aware, the NY Supreme Court is a trial court, and not, actually, the supreme court of NY; that status belongs to the NY Court of Appeals.

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Source: https://reason.com/volokh/2025/06/20/the-quid-pro-quo-redux/