Harvard Law professor emeritus Alan Dershowitz defended the Department of Justice’s decision to move to dismiss criminal charges against New York Mayor Eric Adams in an Opinion piece in the New York Post on February 19. According to Professor Dershowitz, “There’s nothing unusual, or wrong, with the deal Justice offered Mayor Adams.” In fact, the quid pro quo offered Mayor Adams is both unusual and wrong, and Professor Dershowitz’s analysis betrays his misunderstanding of the principles and practices of plea bargaining in federal criminal cases. Consider what Professor Dershowitz claims occurs and what actually happens.
He states that “dropping prosecutions or reducing charges on the basis of quid pro quos is common in all prosecutorial offices.” While it is true that plea bargains occur in over 90% of federal cases, the defendant almost always pays a significant price for his assistance to the government or his plea of guilty.
A federal prosecutor has the discretion not to prosecute an individual who provides substantial assistance in the investigation and prosecution of others accused of committing crimes. In such cases, the person either volunteered to assist before charges were filed against them or was compelled to do so because of the threat of prosecution in that matter or some other. Such assistance, like wearing a wire or agreeing to testify, places the confidential informant and their family in physical and financial jeopardy.
Where a defendant has been charged with a crime and agrees to be a witness against others, the government insists that this person plead guilty to one count of the indictment. At a minimum, this means that the defendant will have a criminal record and, depending on their role in the offense, will serve some time in custodial confinement and supervised release. A conviction for a felony alone has long-term personal and financial consequences.
Agreeing to plead guilty to a reduced sentence, where the defendant cannot or won’t cooperate will almost always mean that they will serve less time in prison, but the defendant almost always goes to prison, or if sentenced to time served, spent a considerable period in a county jail awaiting their sentencing.
In the pro the government offered in exchange for Mayor Adams’s quid, Adams suffers no criminal penalty.
It is true that in the history of the Department of Justice, the government has agreed to very light sentences for truly heinous criminals in exchange for testimony against someone higher up whom the government was determined to get at almost any price. The prime example of such a deal was the one given to Salvatore “Sammy the Bull” Gravano, who testified against John Gotti, the Boss of the Gambino Crime Family (as well as 37 other organized crime figures). Despite admitting to 19 murders, Gravano was only sentenced to five years in prison and, after being released, moved to Nevada with his nuclear family (where he and his family were charged with state and federal drug offenses, landing them all in prison serving significant sentences). While it may be shocking that Gravano escaped virtually scot-free from punishment for these murders, former prosecutor Andrew J. Maloney said, “I don’t know of an informant who’s ever done more than Sammy Gravano in the government’s efforts against organized crime.”
Professor Dershowitz, an expert on constitutional law, asserted that there were no “constitutional differences” between the government’s motion to drop the charges against Adams in exchange for his assistance in implementing the Trump administration’s deportation policy and the “more traditional quid pro quo plea bargains offered to ordinary criminal defendants.” Of course, there is nothing in the Constitution about plea bargains. As Professor Dershowitz certainly knows, all the Supreme Court said in Bordenkircher v. Hayes, 434 U.S. 357 (1978) was that a prosecutor’s threat to bring more severe charges against a defendant to induce a defendant to plead guilty does not violate due process.
Professor Dershowitz further invokes the Constitution to argue that “The fact that the help sought here involved a “quo” that is outside of the specific case—help in enforcing deportation policy—makes no constitutional difference.” Again, no constitutional difference because the practice poses no constitutional issue.
As we have seen, there is a significant difference between the “personal benefit” offered to Mayor Adams and those provided to a defendant for their assistance in a criminal case. There is no limit to the kind of quid a person could offer for the government’s quo under Professor Dershowitz’s conception of criminal justice.
Consider President Trump’s executive order directing the Secretary of the Treasury and the Secretary of Commerce to devise a plan to create a Sovereign Wealth Fund. If Bernie Madoff had offered to manage such a fund, would it have been ok for the government to have dropped the securities fraud charges against him? (While Madoff had thousands of victims, at least he did not murder any of them.)
There is no end to the assistance a defendant could offer in exchange for prosecutors (or their political handlers) to forgo or drop criminal charges. A construction company charged with racketeering could offer to build a runway on an Airforce base in Greenland. The bank president accused of bank fraud could offer free checking to government employees. The CEO of a pharmaceutical company charged with conspiring to fix prices on their company’s new blockbuster cancer drug could agree to assist Medicare in negotiating for lower drug prices.
In the case of Mayor Adams, the quid pro quo is public record, which at least has the benefit of subjecting it to public scrutiny. However, in any case where a putative defendant has been notified that they are a target of a federal investigation, such quid pro quos will remain secret, unlike in a federal criminal prosecution, where they are disclosed to the defense in discovery and to the jury during trial.
I suspect that Professor Dershowitz will not disagree with anything stated in this essay. Which begs the question, why did he offer such a facile opinion in a newspaper widely read by Trump’s supporters?