February 21, 2025
In an unprecedented and legally dubious move, Judge Dale Ho has refused to grant the Department of Justice’s (DOJ) motion to dismiss its own case against New York City Mayor Eric Adams. Instead, he has taken the extraordinary and constitutionally suspect step of appointing independent counsel to argue against the DOJ’s decision. This is a blatant abuse of judicial authority. It threatens the very foundation of prosecutorial discretion, blatantly violates the separation of powers, and raises serious concerns about political activism on the bench.
The DOJ, under well-established legal precedent, has exclusive authority over criminal prosecutions. If the prosecution determines that a case should not proceed—whether due to lack of evidence, concerns about justice, Political motivations, or policy considerations—a judge has no authority to interfere absent clear evidence of harassment. None of those exceptions apply here. Judge Ho’s actions constitute nothing short of judicial misconduct and a flagrant disregard for the Constitution.
Three Actions the DOJ Must Take
The DOJ must not allow this activist judge to insert himself into the prosecution’s exclusive domain. If this power grab is left unchecked, it will set a precedent allowing politically motivated judges to interfere in the criminal justice process whenever they see fit. Three immediate steps must be taken:
1. File a Motion for Reconsideration
The DOJ must aggressively challenge this ruling, demanding that Judge Ho respect the boundaries of his authority and dismiss the case immediately. The motion should outline the clear abuse of judicial power, citing DC and Supreme Court precedent, and emphasizing the judge’s improper encroachment on prosecutorial discretion. This is not up for debate. The DOJ has made its decision, and this court does not have the constitutional authority to substitute its own judgment.
2. Seek a Writ of Mandamus
If Judge Ho refuses to grant reconsideration, the DOJ should immediately petition the U.S. Court of Appeals for a writ of mandamus to compel him to dismiss the case. Federal appellate courts have repeatedly reaffirmed that judges may not act as de facto prosecutors. Judge Ho’s actions are not only legally unsound but warrant immediate appellate intervention. Allowing this rogue behavior to stand would be a constitutional crisis.
3. Move for Recusal
Judge Ho’s actions raise serious concerns about his impartiality. By unilaterally appointing an independent counsel to second-guess the DOJ, he has engaged in conduct that appears politically motivated. A motion for recusal is warranted, as his refusal to dismiss the case lends credence to the argument that this prosecution is weaponized lawfare. A judge cannot and must not intervene in a manner that suggests bias or political interference. Remember the standard the judge must uphold is "The appearance of Impropriety".
Judicial Overreach Cannot Stand
Judge Ho’s rogue decision makes a mockery of the rule of law. If the DOJ does not aggressively challenge this blatant judicial overreach, it will set a dangerous precedent where politically motivated judges interfere with prosecutorial discretion whenever it suits them.
If left unchallenged, this will embolden other judges to ignore constitutional restraints and substitute their own political agendas for the rule of law. The DOJ must act swiftly and decisively to ensure that this improper and unconstitutional interference does not stand. If I were the DOJ I would file the following SCATHING Motion for Reconsideration:
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
UNITED STATES OF AMERICA,
Plaintiff,
v.
ERIC ADAMS,
Defendant.
Case No. [Insert Case Number]
MOTION FOR RECONSIDERATION OF ORDER DENYING DISMISSAL OF INDICTMENT
INTRODUCTION
The United States, by and through its undersigned counsel, respectfully moves this Court to reconsider its improper refusal to grant the Government’s motion to dismiss the indictment against Defendant Eric Adams. The Court’s decision constitutes an egregious abuse of judicial discretion, a usurpation of executive power, and an unconstitutional encroachment on the prosecutorial authority of the Department of Justice (DOJ). The DOJ, vested with exclusive authority under Article II of the Constitution, has made the clear and unambiguous decision to dismiss this prosecution. This Court’s unprecedented refusal to comply is not only legally unsound but politically suspect.
The Court’s unilateral appointment of independent counsel to oppose the Government’s own motion is not only without legal precedent but directly violates established Supreme Court and Circuit Court rulings. The Judiciary does not have the authority to substitute its own judgment for that of the Executive Branch. If this Court does not immediately reverse its improper ruling and grant dismissal, the Government will have no choice but to seek a writ of mandamus from the U.S. Court of Appeals and will consider a motion for judicial recusal given the clear appearance of bias and impropriety.
LEGAL STANDARD: PROSECUTORIAL DISCRETION IS SUPREME UNDER RULE 48(a)
The Supreme Court has definitively ruled that the "leave of court" requirement under Federal Rule of Criminal Procedure 48(a) exists solely to protect defendants from prosecutorial harassment—not to allow the judiciary to usurp the Executive Branch’s prosecutorial function.
In Rinaldi v. United States, 434 U.S. 22 (1977), the Supreme Court stated:
"The principal object of the ‘leave of court’ requirement is apparently to protect a defendant against prosecutorial harassment… The decision to terminate a prosecution is particularly ill-suited to judicial review."
The D.C. Circuit Court reinforced this principle in United States v. Fokker Services B.V., 818 F.3d 733 (D.C. Cir. 2016), where it unequivocally held:
"The Judiciary is not to second-guess the Executive’s exercise of discretion over the initiation and dismissal of criminal charges… The court’s denial of the motion to dismiss in this case was a clear abuse of discretion."
These rulings leave no room for judicial activism. The only legally valid reason for a court to deny a Rule 48(a) motion is in the rare case of demonstrated prosecutorial misconduct—such as repeated filings and dismissals to harass a defendant. There is no such allegation here. The DOJ has determined, in its constitutional discretion, that this case should not proceed. That decision is final.
ARGUMENT
I. THE COURT’S ACTIONS CONSTITUTE A GROSS ABUSE OF JUDICIAL DISCRETION
This Court’s refusal to grant dismissal, combined with its improper appointment of independent counsel to oppose the DOJ’s own motion, is a blatant abuse of judicial discretion. The law does not give this Court the power to override a lawful prosecutorial decision simply because it wishes to see the case continue.
This overreach is precisely what the Supreme Court warned against in Rinaldi and Fokker Services. The Judiciary is not a prosecutorial body. This Court has no legitimate grounds to keep a case open when the Executive has determined it must be dismissed. The very act of appointing independent counsel suggests an improper bias and political motivation, undermining public confidence in the judiciary’s impartiality.
II. THE COURT’S ACTIONS GIVE RISE TO A COMPELLING BASIS FOR MANDAMUS AND RECUSAL
Should this Court refuse to reconsider its improper decision, the Government will have no choice but to seek immediate appellate intervention. A writ of mandamus will be sought from the U.S. Court of Appeals to correct this grave judicial overreach.
Moreover, given the clear appearance of bias—as evidenced by this Court’s extraordinary and legally unjustifiable intervention—the DOJ will consider moving for recusal. The Judiciary must remain neutral; a judge cannot arbitrarily appoint an adversarial counsel when there is no legitimate controversy between the parties. This Court has exceeded its authority and must step aside if it cannot rule in accordance with binding legal precedent.
CONCLUSION
For the foregoing reasons, the United States demands that this Court immediately:
1. Grant this Motion for Reconsideration and dismiss the indictment against Defendant Eric Adams under Rule 48(a).
2. Vacate the appointment of independent counsel as such an action is without legal foundation.
3. Cease all further delays in granting the Government’s lawful motion to dismiss.
Should the Court fail to take immediate corrective action, the United States will escalate this matter to the appellate courts via a writ of mandamus and will strongly consider filing a motion for judicial recusal.
Respectfully submitted,
[DOJ Attorney Name]
[Title]
[DOJ Office Address]
[Date]
This motion is a direct, uncompromising challenge to the judge’s improper ruling, thoroughly based on Supreme Court and Circuit Court precedent, and explicitly outlines next steps, including a writ of mandamus and judicial recusal if necessary. The DOJ cannot and should not tolerate such blatant judicial activism.
@PamBondi, please don't stand for this. Prosecutorial and Judicial Misconduct has been my wheelhouse for 20 years. These judges need to be reigned in and this is something I have written about extensively and will be sharing my concerns for the need for Judicial reform following this writing. It is long overdue in this country.
Grace, Mercy, And Peace To You All,
WLBJ