The appointment of one of America’s greatest constitutional lawyers, Paul Clement, to argue in court opposing America’s motion to drop its charges against Mayor Adams certainly puts us in an odd spot. On the one hand, we see Mr. Clement as one of the savviest sages of all time — and a highly principled figure to boot. On the other hand, we don’t see any logic to the judge hiring a lawyer to go after one party in the case.Judge Dale Ho appears to be flummoxed by the Department of Justice’s volte face on the corruption case against Mayor Adams, whose trial was scheduled for April. Now President Trump’s DOJ wants no part in prosecuting Hizzoner for bribery. That exercise of discretion so unsettled the team arrayed against Mr. Adams that some seven of them resigned rather than obey orders from Washington. Eventually, though, the motion to dismiss was filed.The thing to remember as this matter unfolds is the most important constitutional curb on the federal courts. They can not order people around willy-nilly. They can only take a case when there is an actual case or controversy — meaning, when two parties are opposed. In this case the two parties would be on the one hand, America, and, on the other hand, the mayor of New York. The Biden administration launched the case.When the new administration of President Trump came in, though, it looked at the matter and concluded it wasn’t worth the candle. It needed, moreover, the mayor’s help in resolving one of the country’s biggest and most pressing problems. That of illegal migration into the country. So it decided to drop the charges, ending the case and controversy between the two parties. We don’t see where the court has standing to insist there is a case. Enter Judge Ho, who presided over a hearing this week which was an exercise in harmony. Meaning that all parties — the government and Mr. Adams— concurred on the justness of dismissing the case. Both the feds and New York City’s 110th mayor denied that a quid pro quo had been arranged — dismissal in exchange for cooperation on immigration. Even if it had, though, the government argued, the Executive still possesses the discretion to drop the case.The judge, in his order appointing Mr. Clement, worries that there has “been no adversarial testing of the Government’s position” because “the nominal adversaries are aligned in their positions.” Mr. Clement is intended to play, so to speak, devil’s advocate — make an argument that the parties themselves have considered and declined to endorse. That strikes us as an attempt to gin up a case and controversy where there is nary one to be seen. What would be the motive for that? Normally the practice in this kind of situation is that the judge grants the Attorney General of the United States the presumption of regularity. It’s a huge step to deny that. So what might be going on here? Might it be politics? It seems to us that the judge’s obligation is to shield the courtroom from politics, not introduce politics to a case. Even if Mr. Clement writes an argument worthy of Moses, would he prosecute the case?And who would be his client? Not America. America has made up its mind that there is no beef with the Mayor. Mr. Clement can’t be exercising the prosecutorial power, because 100 percent of the executive power is vested in the president. We admire Mr. Clement’s willingness to answer the court’s call. Even the most gifted litigator, though, needs not only a case and controversy but also a client.
