124. The Thursday Night Massacre(s)

Two very different episodes on Thursday provide growing evidence of a Department of Justice that is showing less respect, by the day, for the rule of law.

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Three weeks ago, I wrote a post about the declining credibility of the Department of Justice—and how much that could (and, if it continued, would) create serious long-term repercussions for the ability of the Department to enforce all federal law. I wasn’t inclined to return to that topic so quickly (or to write a fourth post of this week—oy!) until events … spiraled … on Thursday afternoon in two very different contexts.

The first is the contretemps over the Justice Department’s transparently cynical decision to drop the corruption prosecution of Eric Adams, the Mayor of New York City, at the exact same time (a remarkable coincidence!) as Adams apparently promised to cooperate with federal immigration enforcement authorities. The second is letters that Attorney General Pam Bondi apparently sent to Apple and Google (among others) telling them that they can effectively ignore the TikTok statute—the one the Supreme Court just upheld against a constitutional challenge—because (1) the Justice Department won’t prosecute them for violating it; and (2) indeed, doing exactly what the statute forbids is not, in her view, actually violating the statute.

The Adams Affair is getting more public attention—and understandably so. But both of these episodes are, or at least ought to be, enormous black eyes for the Department of Justice, and for the idea that the Department is committed to the rule of law over and above the immediate political preferences of the current President. Indeed, it seems safe to say that what happened on Thursday was the October 1973 “Saturday Night Massacre” on steroids.

I. The Adams Affair

There isn’t enough electronic ink to fully summarize the background of the Eric Adams saga. To make a very long story short, the 110th Mayor of the City of New York was indicted last year by federal prosecutors on one count of conspiracy to receive campaign contributions from foreign nationals and commit wire fraud and bribery; two counts of soliciting campaign contributions from foreign nationals; and one count of soliciting and accepting a bribe. In essence, the indictment claimed that Adams received more than $100,000 worth of free plane tickets and luxury hotel stays from wealthy Turkish nationals and at least one government official over the course of a decade.

On Monday, the Acting Deputy Attorney General,¹ Emil Bove, directed the New York federal prosecutors to drop the charges, offering a series of reasons that … fail to persuade. But what was most striking about the first Bove memo was footnote 1:

Your Office correctly noted in a February 3, 2025 memorandum, "as Mr. Bove clearly stated to defense counsel during our meeting [on January 31, 2025], the Government is not offering to exchange dismissal of a criminal case for Adams's assistance on immigration enforcement."

There’s an old Twitter meme about how “My ‘Not involved in human trafficking’ shirt has people asking a lot of questions already answered by my shirt.” (Or, if you prefer, “The lady doth protest too much.”) That was my reaction to this footnote—the need to put in writing that dropping the prosecution was not in exchange for “assistance on immigration enforcement” sure seemed to strongly imply that actually … it was.

Fast forward to a letter sent yesterday to Attorney General Bondi by Danielle Sassoon, the Interim U.S. Attorney for the Southern District of New York (i.e., the top federal prosecutor in Manhattan).² Sassoon’s letter is … stunning. (And the New York Times has helpfully annotated it to provide additional background.) Not only did she vigorously defend the decision to indict Adams (and the strength of the indictment); she also wrote that, during the meeting that Bove’s memo mentioned in footnote 1, Adams’s lawyers had indeed “repeatedly urged what amounted to a quid pro quo, indicating that Adams would be in a position to assist with the Department’s enforcement priorities only if the indictment were dismissed.”

The letter goes on to methodically pick apart all of the arguments the Bove memo made for dropping the case against Adams, and requests that Bondi reconsider Bove’s memo in light of its analysis. As Sassoon concluded, “I cannot fulfill my obligations, effectively lead my office in carrying out the Department's priorities, or credibly represent the Government before the courts, if I seek to dismiss the Adams case on this record.” If Bondi wouldn’t reconsider, Sassoon offered her resignation as Interim U.S. Attorney.

That would all have been scandalous enough, but then there’s the eight-page letter Bove sent to Sassoon today—purporting to accept her resignation (that’s actually the Attorney General’s job, but we’ll skip the formalities), and accusing her of “insubordination.” As Bove writes,

This decision is based on your choice to continue pursuing a politically motivated prosecution despite an express instruction to dismiss the case. You lost sight of the oath that you took when you started at the Department of Justice by suggesting that you retain discretion to interpret the Constitution in a manner inconsistent with the policies of a democratically elected President and a Senate-confirmed Attorney General.

Bove then noted that he’s placing two of the Assistant U.S. Attorneys who assisted in the Adams case on administrative leave, and is transferring the Adams case to the Justice Department’s Public Integrity Section—which, he explained, will seek dismissal of the prosecution under Fed. R. Crim. P. 48. Shortly thereafter, the top lawyer in that section (and the acting head of the criminal division) resigned—followed a few hours later by three other attorneys. In other words, six senior Justice Department lawyers resigned rather than carry out Bove’s directive to drop the Adams case. In case you’re scoring at home, that’s twice as many lawyers as were fired/resigned in the original “Saturday Night Massacre.”³

What’s striking about this is not just how transparent what’s actually happening is; it’s Bove’s candid admission, in today’s letter, that “the policies of a democratically elected President and a Senate-confirmed Attorney General” take precedence over a Justice Department lawyer’s oath … to the Constitution. It would be one thing if Bove argued that the President’s (or Attorney General’s) interpretation of the Constitution takes precedence over that of an Interim U.S. Attorney. But that’s not even his argument. Rather, it’s that Sassoon (who, although it shouldn’t matter, is a Republican who clerked for Justice Scalia) had no business raising to the Attorney General her view of what the law required in a case in which it conflicts with the political preferences of the President—indeed, that it was “insubordinate” for her to do so.

So we have what sure as sh*t seems like a quid pro quo on DOJ’s part (dropping the Adams case in exchange for Adams using his powers as mayor to assist federal immigration enforcement efforts); a principled, Republican DOJ attorney raising concerns about the whole situation and asking for a meeting with the Attorney General; and the Acting Deputy Attorney General describing those efforts as “insubordination” while accepting her resignation—without any word from the Attorney General herself.

There’s still, of course, the matter of actually dismissing the prosecution. The district judge (Judge Dale Ho) may have very little discretion to deny a Rule 48 motion to dismiss. But I suspect he’s going to have some choice questions for whoever shows up from DOJ (and, perhaps, Bove himself if he’s summoned) before signing off. In the meantime, this all redounds to the detriment of the Justice Department’s public reputation—not just for the deal it appears to have made, but for the way it has treated and is treating the lawyers who had enough principles to object. And all of this to twist the arm of one allegedly corrupt mayor into cooperating with immigration enforcement.

Yikes.

II. The Lawlessness of the TikTok Letters

As if that wasn’t enough, later on Thursday came news that Apple and Google were restoring access to TikTok in their app stores in response to letters from Attorney General Bondi promising that they wouldn’t be prosecuted for violating the TikTok statute. (For background on that statute, see this earlier post.) By all accounts, the Bondi letters simply followed the directives President Trump had spelled out in his January 20 executive order—promising no prosecution and also providing the Department’s legal conclusion that supporting TikTok in app stores would not, in fact, violate the TikTok statute.

As I wrote three weeks ago, whatever else might be said about an Attorney General’s choice to not enforce a federal statute that the Supreme Court just upheld against a constitutional challenge, putting into writing that companies like Apple and Google are not violating the statute when they transparently … are … is something else altogether. Don’t just take my word for it, though; as relevant here, the statute bars U.S. companies from:

Providing services to distribute, maintain, or update such foreign adversary controlled application (including any source code of such application) by means of a marketplace (including an online mobile application store) through which users within the land or maritime borders of the United States may access, maintain, or update such application.

In other words, when Apple and Google provide access to TikTok through their app stores, they are violating the unambiguous, plain text of the statute. There’s just no non-frivolous argument to the contrary. Thus, to assert that Apple and Google aren’t violating this provision is to assert that 2 + 2 = porcupine. It’s not a legal argument at all; it’s just a diktat.

In essence, then, the Attorney General of the United States has put her name to legal conclusions that (1) she was directed to reach by the President; and (2) are laughably wrong. It was one thing when Trump put it in an executive order. It’s something else when a Senate-confirmed Attorney General follows through—it is the epitome of politics over law from the federal officer who ought to be most committed to the latter.

Unlike the Adams Affair, no one had to resign for this blow to the Department of Justice’s credibility (to say nothing of its commitment to the rule of law). But that’s a problem in and of itself. Any self-respecting Attorney General should have resigned rather than agree to endorse a legal conclusion that is so obviously, transparently, and preposterously false—and for no other reason than to spare the President from bad optics. Instead, Bondi leaned into it.

***

There’s so much going on both in the administration and in suits challenging those actions that it’s difficult to keep track of all of the developments. But especially as this is a newsletter about the Supreme Court, it seemed (and seems) worth paying special attention to the Department of Justice—which is not just the most frequent and powerful litigant before the Court, but is the institution in the executive branch that is supposed to put the rule of law above all else.

The more that we’re seeing these flashpoints in which DOJ is running roughshod over law, the more that augurs poorly for what’s coming down the pike—not just with respect to future troubling conduct by this administration, but with respect to the ability of any future Department of Justice to expect that its public and legal representations will be viewed as inherently credible. The result will be to put that much more pressure on courts (and to cede that much more power to courts)—to be skeptical even in cases in which the government is acting in the best interests of the rule of law. I fear that we’ll all miss the Department’s credibility once it’s gone. At this rate, that will be sooner rather than later.

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1. Bove is serving as the “Acting” Deputy Attorney General because he was appointed to the position of Principal Assistant Deputy Attorney General (PADAG)—a job that doesn’t require Senate confirmation, and that is the “first assistant” to the Deputy Attorney General. The nomination of Todd Blanche to be the Deputy Attorney General is pending.

2. Yes, the Southern District also encompasses the Bronx, Westchester, and five more counties to the north and west of the City. But the Manhattan part is what matters here (he writes as a native Manhattanite).

3. For those unfamiliar with the history, on Saturday, October 20, 1973, President Nixon ordered Attorney General Eliot Richardson to fire the Watergate special prosecutor, Archibald Cox. Richardson refused, and resigned. Nixon then ordered Richardson’s deputy, now the Acting Attorney General, William Ruckelshaus, to do it. Ruckelshaus, too, refused and resigned. That left the Solicitor General, Robert Bork, as the Acting Attorney General. Bork agreed to fire Cox—a move that backfired spectacularly for Nixon.