Lawyer Paul Clement’s recommendation that a federal district judge, Dale Ho, permanently dismiss the criminal charges against Mayor Adams could amount to a Solomonic solution — albeit one with downside for President Trump — to a case that has engendered prosecutorial pandemonium. 

Mr. Clement, a star attorney who once served as America’s solicitor general, was tapped by Judge Ho to provide advice after the Department of Justice moved to end its bribery case against the mayor. That decision provoked a wave of resignations that upended the Southern District of New York.

The federal rules of criminal procedure establish that the “government may, with leave of court, dismiss an indictment.” The acting United States attorney for the SDNY, Danielle Sassoon, quit rather than file for the dismissal. She alleges in a letter to the principal deputy attorney general, Emil Bove, that the administraiton agreed on a quid pro quo with Mayor Adams.

Judge Ho called a hearing to ventilate the issue, and, when it became clear that both the mayor and the government were advocates for dismissal, appointed Mr. Clement as an amicus. Mr. Clement concurs that dismissal is warranted because nothing authorizes the “Article III branch” — the judiciary —  “to force the Article II branch” — the executive — “to continue a prosecution against its will, or to appoint a private party to take it over.”

That is the Trump administration’s position. Mr. Clement, though, swerves when he recommends that Judge Ho dismiss the charges “with prejudice,” meaning that they cannot be refiled at a later time. Mr. Bove had advocated dismissing the case “without prejudice,” which would have preserved the possibility of prosecution. 

Mr. Clement explains that “the executive’s unilateral option for ending a prosecution — namely, a pardon — more closely resembles a dismissal with prejudice.” He contrasts that with a dismissal without prejudice, which “creates a palpable sense that the prosecution outlined in the indictment and approved by a grand jury could be renewed, a prospect that hangs like the proverbial Sword of Damocles over the accused.”

The erstwhile solicitor general adds that “Such an ongoing prospect of re-indictment is particularly problematic when it comes to the sensitive task of prosecuting public officials” because “the prospect of reindictment could create the appearance, if not the reality, that the actions of a public official are being driven by concerns about staying in the good graces of the federal executive, rather than the best interests of his constituents.” 

That logic appears to at least acknowledge Ms. Sassoon’s concern that a dismissal without prejudice could create the circumstances where the threat of prosecution could be used as a cudgel to steer Mr. Adams toward Washington’s preferred policy outcomes. Mr. Clement notes, though, that Judge Ho cannot “constitutionally force the executive to proceed, which would likely necessitate a dismissal with prejudice on speedy-trial grounds.”

Mr. Clement surfaces a long history of presidents exerting decisions over prosecutorial matters. He writes that “Presidents Washington, Adams, and Jefferson all exercised the power to direct district attorneys to begin and cease prosecutions” and that this “unilateral authority represented a continuation from English practice” since at least the middle of the 17th century.

Over time, though, the Supreme Court endorsed the notion that “leave of court” was required before ending a prosecution and allowed for “a judicial inquiry that goes beyond the four corners of the government’s motion to dismiss.” Ms. Sassoon alluded to this dispensation when she called on Judge Ho to conduct a “searching inquiry” into the circumstances of the government’s dismissal.

The government argues that “that dismissal is necessary and appropriate … based on the unique facts and circumstances of this case.” Mr. Clement reminds Judge Ho that “No matter how clearly someone has violated a federal criminal statute, neither the courts nor the citizenry can compel the executive to initiate a criminal prosecution.” He cites that as a fundament of liberty.

Mr. Clement quotes a decision written by Justice Brett Kavanaugh when he was a circuit rider. The future high court justice declared in 2013 that “one of the greatest unilateral powers a President possesses under the Constitution, at least in the domestic sphere, is the power to protect individual liberty by essentially under-enforcing federal statutes.”

Mr. Clement notes that “there is no express authorization for the courts to take over a prosecution or to appoint a special prosecutor.” The Supreme Court has held that prosecutorial decisions can take into account the “strength of the case, the prosecution’s general deterrence value, the Government’s enforcement priorities, and the case’s relationship to the Government’s overall enforcement plan.” 

An “intramural dispute among executive branch prosecutors” is how Mr. Clement refers to the upheaval at the DOJ, which continued on Friday with the placing on  leave of three federal prosecutors on who worked on the case against Mr. Adams. The DOJ in a filing on Friday offered into evidence text messages from the case’s lead prosecutor, Hagan Scotten, that it was “pretty plausible” that there was “a political motive in bringing this case.” 

Mr. Clement reasons that a dismissal with prejudice addresses the concerns of both those who argue that the prosecution never should have been brought and those, like Ms. Sassoon, who argue that the threat of re-prosecution is a corrupting force. Mr. Clement reckons that forcing the government to prosecute would amount to an “extraordinary” — and futile — course.