This afternoon, Hagan Scotten, who was Danielle Sassoon’s colleague and second in command, has followed her out the door. Mr. Scotten took his law degree at Harvard, was a clerk to Brett Kavanaugh and to Chief Justice Roberts, and prosecuted the case against Eric Adams.
On the way out, Scotten took out his undated resignation letter and fired it off. It reads as follows:
BY EMAIL
Re: United States v. Eric Adams, 24 Cr. 556 (DEH)
Mr. Bove,
I have received correspondence indicating that I refused your order to move to dismiss the indictment against Eric Adams without prejudice, subject to certain conditions, including the express possibility of reinstatement of the indictment. That is not exactly correct. The U.S. Attorney, Danielle R. Sassoon, never asked me to file such a motion,and I therefore never had an opportunity to refuse. But I am entirely in agreement with her decision not to do so, for thereasons stated in her February 12, 2025 letter to the Attorney General.
In short, the first justification for the motion—that Damian Williams’s role in the case somehow tainted a validindictment supported by ample evidence, and pursued under four differentU.S. attorneys—is so weak as to be transparently pretextual. The second justification is worse. No system of ordered liberty can allow the Government to use the carrot of dismissing charges, or the stick of threatening to bring them again, to induce an elected official to support its policy objectives.
There is a tradition in public service of resigning in a last-ditch effort to head off a serious mistake. Some will view the mistake you are committing here in the light of their generally negative views of the new Administration. I do not share those views. I can even understand how a Chief Executive whose background is in business and politics might see the contemplated dismissal-with-leverage as a good, if distasteful, deal. But any assistant U.S. attorneywould know that our laws and traditions do not allow using the prosecutorial power to influence other citizens, much less elected officials, in this way. If no lawyer within earshot of the President is willing to give him that advice, then I expect you will eventually find someone who is enough of a fool, or enough of a coward, to file your motion. But it was never going to be me.
Please consider this my resignation. It has been an honor to serve as a prosecutor in the Southern District of New York.
Yours truly, Hagan Scotten
Assistant United States Attorney Southern District ofNew York
Danielle Sassoon, Esq., a graduate of Harvard College and of Yale Law School, a former clerk for Justice Antonin Scalia, a continuing member in good standing of the Federalist Society, and—for a few weeks, following Trump’s inauguration—temporary chief federal prosecutor in Manhattan, has resigned. She took this action because she could not, in good conscience, obey her masters’ orders to go into court and ask for dismissal of the criminal case against Eric Adams, in circumstances where there was no proper legal basis for making such a request.
Her resignation letter of February 12, addressed to Attorney General Bondi, spends 7½ pages explaining the baselessness of the position she had been ordered to advocate to the courts. The letter concludes thusly,
I Cannot in Good Faith Request the Contemplated Dismissal
Because the law does not support a dismissal, and because I am confident that Adams has committed the crimes with which he is charged, I cannot agree to seek a dismissal driven by improper considerations. As Justice Robert Jackson explained, “the prosecutor at his best is one of the most beneficent forces in our society, when heacts from malice or other base motives, he is one of the worst.” The Federal Prosecutor, 24 J. Am. Jud. Soc’y 18 (“This authority has been granted by people who really wanted the right thing done—wanted crime eliminated—but also wanted the best in our American traditions preserved.”). I understand my duty as a prosecutor to mean enforcing the law impartially, and that includes prosecuting a validly returned indictment regardless whether its dismissal would be politically advantageous, to the defendant or to those who appointed me. A federal prosecutor “is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all.” Berger v. United States, 295 U.S. 78, 88 (1935).
For the reasons explained above, I do not believe there are reasonable arguments in support of a Rule 48(a) motion to dismiss a case that is well supported by the evidence and the law. I understand that Mr. Bove disagrees,and I am mindful of your recent order reiterating prosecutors’ duty to make good-faith arguments in support of the Executive Branch’s positions. See Feb. 5, 2025 Mem. “General Policy Regarding Zealous Advocacy on Behalf of the United States.” But because I do not see any good-faith basis for the proposed position, I cannot make sucharguments consistent with my duty of candor. N.Y.R.P.C. 3.3; id. cmt. 2 (“A lawyer acting as an advocate in an adjudicative proceeding has an obligation to present the client’s case with persuasive force. Performance of thatduty while maintaining confidences of the client, however, is qualified by the advocate’s duty of candor to the tribunal.”).
In particular, the rationale given by Mr. Bove—an exchange between a criminal defendant and the Department of Justice akin to the Bout exchange with Russia—is, as explained above, a bargain that a prosecutor should not make. Moreover, dismissing without prejudice and with the express option of again indicting Adams in the future creates obvious ethical problems, by implicitly threatening future prosecution if Adams’s cooperation with enforcing the immigration laws proves unsatisfactory to the Department. See In re Christoff, 690 N.E.2d 1135 (Ind. 1997) (disciplining prosecutor for threatening to renew a dormant criminal investigation against a potentialcandidate for public office in order to dissuade the candidate from running); Bruce A.Green & Rebecca Roiphe, Who Should Police Politicization of the DOJ?, 35 Notre Dame J.L. Ethics & Pub. Pol’y671, 681 (2021) (noting that the Arizona Supreme Court disbarred the elected chief prosecutor of Maricopa County,Arizona, and his deputy, in part, for misusing their power to advance the chief prosecutor’s partisan political interests). Finally, given the highly generalized accusations of weaponization, weighed against the strength of theevidence against Adams, a court will likely question whether that basis is pretextual. See, e.g., United States v. Greater Blouse, Skirt & Neckwear Contractors, 228 F. Supp. 483, 487 (S.D.N.Y. 1964) (courts “should be satisfiedthat the reasons advanced for the proposed dismissal are substantial and the real grounds upon which the application is based”).
I remain baffled by the rushed and superficial process by which this decision was reached, in seemingcollaboration with Adams’s counsel and without my direct input on the ultimate stated rationales for dismissal. Mr. Bove admonished me to be mindful of my obligation to zealously defend the interests of the United States and to advance good-faith arguments on behalf of the Administration. I hope you share my view that soliciting andconsidering the concerns of the U.S. Attorney overseeing the case serves rather than hinders that goal, and that we can find time to meet.
In the event you are unwilling to meet or to reconsider the directive in light of the problems raised by Mr. Bove’s memo, I am prepared to offer my resignation. It has been, and continues to be, my honor to serve as a prosecutor in the Southern District of New York.
Very truly yours,
DANIELLE R. SASSOON
United States Attorney Southern District of NewYork
A Statement by the President of the ABA: Every Lawyer’s Duty
It has been three weeks since Inauguration Day. Most Americans recognize that newly elected leaders bring change. That is expected. But most Americans also expect that changes will take place in accordance with the rule of law and in an orderly manner that respects the lives of affected individuals and the work they have been asked to perform.
Instead, we see wide-scale affronts to the rule of law itself, such as attacks on constitutionally protected birthright citizenship, the dismantling of USAID and the attempts to criminalize those who support lawful programs to eliminate bias and enhance diversity.
We have seen attempts at wholesale dismantling of departments and entities created by Congress without seeking the required congressional approval to change the law. There are efforts to dismiss employees with little regard for the law and protections they merit, and social media announcements that disparage and appear to be motivated by a desire to inflame without any stated factual basis. This is chaotic. It may appeal to a few. But it is wrong. And most Americans recognize it is wrong. It is also contrary to the rule of law.
The American Bar Association supports the rule of law. That means holding governments, including our own, accountable under law. We stand for a legal process that is orderly and fair. We have consistently urged the administrations of both parties to adhere to the rule of law. We stand in that familiar place again today. And we do not stand alone. Our courts stand for the rule of law as well.
Just last week, in rejecting citizenship challenges, the U.S. District Judge John Coughenour said that the rule of law is, according to this administration, something to navigate around or simply ignore. “Nevertheless,” he said, “in this courtroom and under my watch, the rule of law is a bright beacon which I intend to follow.” He is correct. The rule of law is a bright beacon for our country.
In the last 21 days, more than a dozen lawsuits have been filed alleging that the administration’s actions violate the rule of law and are contrary to the Constitution or laws of the United States. The list grows longer every day.
These actions have forced affected parties to seek relief in the courts, which stand as a bulwark against these violations. We support our courts who are treating these cases with the urgency they require. Americans know there is a right way and a wrong way to proceed. What is being done is not the right way to pursue the change that is sought in our system of government.
These actions do not make America stronger. They make us weaker. Many Americans are rightly concerned about how leaders who are elected, confirmed or appointed are proceeding to make changes. The goals of eliminating departments and entire functions do not justify the means when the means are not in accordance with the law. Americans expect better. Even among those who want change, no one wants their neighbor or their family to be treated this way. Yet that is exactly what is happening.
These actions have real-world consequences. Recently hired employees fear they will lose their jobs because of some matter they were assigned to in the Justice Department or some training they attended in their agency. USAID employees assigned to build programs that benefit foreign countries are being doxed, harassed with name-calling and receiving conflicting information about their employment status. These stories should concern all Americans because they are our family members, neighbors and friends. No American can be proud of a government that carries out change in this way. Neither can these actions be rationalized by discussion of past grievances or appeals to efficiency. Everything can be more efficient, but adherence to the rule of law is paramount. We must be cognizant of the harm being done by these methods. No American can be proud of a government that carries out change in this way. Neither can these actions be rationalized by discussion of past grievances or appeals to efficiency. Everything can be more efficient, but adherence to the rule of law is paramount. We must be cognizant of the harm being done by these methods.
These stories should concern all Americans because they are our family members, neighbors and friends. No American can be proud of a government that carries out change in this way.
Moreover, refusing to spend money appropriated by Congress under the euphemism of a pause is a violation of the rule of law and suggests that the executive branch can overrule the other two co-equal branches of government. This is contrary to the constitutional framework and not the way our democracy works. The money appropriated by Congress must be spent in accordance with what Congress has said. It cannot be changed or paused because a newly elected administration desires it. Our elected representatives know this. The lawyers of this country know this. It must stop.
There is much that Americans disagree on, but all of us expect our government to follow the rule of law, protect due process and treat individuals in a way that we would treat others in our homes and workplaces. The ABA does not oppose any administration. Instead, we remain steadfast in our support for the rule of law.
We call upon our elected representatives to stand with us and to insist upon adherence to the rule of law and the legal processes and procedures that ensure orderly change. The administration cannot choose which law it will follow or ignore. These are not partisan or political issues. These are rule of law and process issues. We cannot afford to remain silent. We must stand up for the values we hold dear. The ABA will do its part and act to protect the rule of law.
We urge every attorney to join us and insist that our government, a government of the people, follow the law. It is part of the oath we took when we became lawyers. Whatever your political party or your views, change must be made in the right way. Americans expect no less.
Right now, the federal district courts are doing a good job standing up to Trump’s myriad of unconstitutional and otherwise illegal acts. And the lawyers who have the misfortune to try to defend Trump in court can’t quite decide whether to obey the injunctions, to pretend to obey the injunctions and lie to the court, or just to say, “Your Honor, fuck you and the horse you rode in on.”
Soon, the circuit courts of appeal will weigh in, and then the Supreme Court.
The New York Times spoke to a bunch of experts on constitutional law, and produced the following article summarizing the situation as of today, Monday, Feb. 10. (And please remember that among the jobs of an expert on constitutional law is to follow closely the thinking of individual justices.)
The Times reporter writes,
There is no universally accepted definition of a constitutional crisis, but legal scholars agree about some of its characteristics. It is generally the product of presidential defiance of laws and judicial rulings. It is not binary: It is a slope, not a switch. It can be cumulative, and once one starts, it can get much worse.
It can also be obvious, said Erwin Chemerinsky, dean of the law school at the University of California, Berkeley.
“We are in the midst of a constitutional crisis right now,” he said on Friday. “There have been so many unconstitutional and illegal actions in the first 18 days of the Trump presidency. We never have seen anything like this.”
His ticked off examples of what he called President Trump’s lawless conduct: revoking birthright citizenship, freezing federal spending, shutting down an agency, removing leaders of other agencies, firing government employees subject to civil service protections and threatening to deport people based on their political views.
That is a partial list, Professor Chemerinsky said, and it grows by the day. “Systematic unconstitutional and illegal acts create a constitutional crisis,” he said.
The distinctive feature of the current situation, several legal scholars said, is its chaotic flood of activity that collectively amounts to a radically new conception of presidential power. But the volume and speed of those actions may overwhelm and thus thwart sober and measured judicial consideration.
It will take some time, though perhaps only weeks, for a challenge to one of Mr. Trump’s actions to reach the Supreme Court. So far he has not openly flouted lower court rulings temporarily halting some of his initiatives, and it remains to be seen whether he would defy a ruling against him by the justices.
“It’s an open question whether the administration will be as contemptuous of courts as it has been of Congress and the Constitution,” said Kate Shaw, a law professor at the University of Pennsylvania. “At least so far, it hasn’t been.”
Vice President JD Vance struck a confrontational tone on social media on Sunday when he wrote, “Judges aren’t allowed to control the executive’s legitimate power.”Haiyun Jiang for The New York Times
Professor Shaw said a clash with the courts would only add to a crisis that is already underway. “A number of the new administration’s executive orders and other executive actions are in clear violation of laws enacted by Congress,” she said.
“The administration’s early moves,” she added, “also seem designed to demonstrate maximum contempt for core constitutional values — the separation of powers, the freedom of speech, equal justice under law.”
Pamela Karlan, a law professor at Stanford, added that a crisis need not arise from clashes between the branches of the federal government.
“It’s a constitutional crisis when the president of the United States doesn’t care what the Constitution says regardless whether Congress or the courts resist a particular unconstitutional action,” she said. “Up until now, while presidents might engage in particular acts that were unconstitutional, I never had the sense that there was a president for whom the Constitution was essentially meaningless.”
The courts, in any event, may not be inclined or equipped to push back. So much is happening, and so fast, that even eventual final rulings from the Supreme Court rejecting Mr. Trump’s arguments could come too late. After the U.S. Agency for International Development or the Consumer Financial Protection Bureau are disassembled, say, no court decision can recreate them.
In many cases, of course, the Supreme Court’s six-member conservative majority may be receptive to Mr. Trump’s arguments. Its decision in Julygranting him substantial immunityfrom prosecution embraced an expansive vision of the presidency that can only have emboldened him.
Members of that majority are, for instance, likely to embracethe president’s position that he is free to fire leaders of independent agencies.
The court may nonetheless issue an early, splashy ruling against Mr. Trump to send a signal about its power and independence. Striking down Mr. Trump’s order directing officials to deny citizenship to the children of immigrants would seem to be a good candidate, as it is at odds with the conventional understanding of the Constitution and the court’s precedents.
Such a decision would have an added benefit: It would be hard to disobey. From its earliest days, the Supreme Court has been wary of issuing rulings that might be ignored.
“I’m reminded of Marbury v. Madison, when the government did not even bother to show up before the Supreme Court to defend its position — strongly suggesting it would flout any court order against it,” said Amanda Frost, a law professor at the University of Virginia.
Even as the court ruled that the administration of Thomas Jefferson had acted unlawfully, she said, “the court carefully crafted its opinion in that case to avoid a ruling requiring executive branch compliance.”
Much has changed since that 1803 decision, and the Supreme Court’s stature and authority has grown. “Nonetheless,” Professor Frost said, “the Supreme Court may find it hard to defend the laws Congress enacted against executive usurpation when the Republican-controlled Congress refuses to do the same.”
Professor Karlan said she worried that the justices would rule for Mr. Trump for fear that he would ignore decisions rejecting his positions. “The idea that courts should preserve the illusion of power by abdicating their responsibilities would just make the constitutional crisis even worse,” she said.
Mr. Trump has already disregarded one Supreme Court decision, its ruling last monthupholding a federal law, passed by lopsided bipartisan majorities, requiring TikTok to be sold or banned. Mr. Trump instead ordered the Justice Departmentnot to enforce the law for 75 days, citing as authority for the move his “unique constitutional responsibility for the national security of the United States.”
President Dwight D. Eisenhower sent the 101st Airborne Division to Little Rock, Ark., in 1957 to enforce Brown v. Board of Education, a Supreme Court decision in 1954 that banned segregation in public schools.Associated Press
Defiance of Supreme Court decisions is not unheard-of. Southern states, for instance, for years refused to follow Brown v. Board of Education, the 1954 decision that banned segregation in public schools, engaging in what came to be known as “massive resistance.”
The Brown decision is now almost universally viewed as a towering achievement. But its enforcement required President Dwight D. Eisenhower to decide to send members of the 101st Airborne Division to Little Rock, Ark., to escort Black students through an angry white mob.
Not all presidents gave the court’s rulings the same respect. In 1832, President Andrew Jackson refused to enforce a Supreme Court decisionarising from a clash between Georgia and the Cherokee Nation. A probably apocryphal but nonetheless potent comment is often attributed to Jackson about Chief Justice John Marshall: “John Marshall has made his decision; now let him enforce it.”
Even before this weekend, Mr. Vance has saidthat Mr. Trump should ignore the Supreme Court. In a 2021 interview, he said Mr. Trump should “fire every single midlevel bureaucrat, every civil servant in the administrative state” and “replace them with our people.”
He added: “When the courts stop you, stand before the country like Andrew Jackson did and say, ‘The chief justice has made his ruling. Now let him enforce it.’”
Chief Justice John G. Roberts Jr. took note of such threats in his year-end reportin December.
“Every administration suffers defeats in the court system — sometimes in cases with major ramifications for executive or legislative power or other consequential topics,” he wrote. “Nevertheless, for the past several decades, the decisions of the courts, popular or not, have been followed, and the nation has avoided the standoffs that plagued the 1950s and 1960s.”
“Within the past few years, however,” the chief justice went on, “elected officials from across the political spectrum have raised the specter of open disregard for federal court rulings. These dangerous suggestions, however sporadic, must be soundly rejected.”
That view has many supporters, though some use caveats. “It would be an extremely grave matter for a president to defy an actual (unstayed, in-effect) order of a federal court in a case that is indisputably in the court’s jurisdiction,” Ed Whelan, a conservative legal commentator, wrote on social media.
But considering discrete clashes may be relying on an outdated paradigm.
“One way to look at the administration’s assault on legal barriers is that it is seeking to establish ‘test cases’ to litigate and win favorable Supreme Court decisions,” Bob Bauer and Jack Goldsmith wrote in their Executive Functionsnewsletter. “But the typical test case is a carefully developed, discrete challenge to statutory or judge-made law with some good faith basis.”
Mr. Goldsmith is a law professor at Harvard and a former Justice Department official in the George W. Bush administration. Mr. Bauer was White House counsel for President Barack Obama. They are students of Article II of the Constitution, which sets out the powers of the president.
Mr. Trump’s executive orders have some features suggesting that they mean to test legal theories in the Supreme Court, they wrote. “But in the aggregate,” they added, “they seem more like pieces of a program, in the form of law defiance, for a mini-constitutional convention to ‘amend’ Article II across a broad front.”
Step One. Will the federal district courts and the federal courts of appeal keep on telling Trump that he must obey the Constitution and the laws?
Step Two. When the first cases reach the Supreme Court, will the Court follow the example set by the lower courts and order the Administration to obey the Constitution and the laws, and will the Supreme Court reaffirm that Marbury v. Madison remains the law of the land? (See the post immediately below for some thoughts on that question.)
Step Three. Thus far, Mango Mussolini and some of the people aboard his clown car have been cutsy-wootsy about whether they will obey the courts. But J.D. Vance—who has some asshole buddies that hate democracy—bleated out this weekend that the Supreme Court has no authority over Trump. Soo … when the courts find some of Trump’s henchmen in contempt of court and order the U.S. Marshalls Service to go arrest them, will Trump countermand the order, or will he back down, or will he pretend to back down and play cutsy-wootsy?
Step Four. If Orange Jesus follows Vance’s advice and defies the courts, what happens then?
Donald Trump is certain that he knows more than any general about how to fight a war and more than any scientist about climate science. By like token, some of my friends are certain beyond rational argument that the Supreme Court will just bow down to Trump. The professional constitutional lawyers are not so certain, see my post on The Constitutional Crisis, but what do they know?
I have had some challenging conversations in the last few days.
Well, que sera sera. The Supreme Court is going to do whatever the Supreme Court is going to do. Can I predict with certainty what they will be? No, I can’t. And neither, by the way, can the dean at UC Berkeley make a certain prediction.
Certainly, the Supreme Court majority has made some awful decisions, and that’s a strong point in favor of the catastrophists imbued with certain certitude about the impending apocalypse.
On the other hand, if the Supreme Court tells Trump he need not worry about obeying the Constitution, they are telling him it’s OK to ignore the Bill of Rights, imprison anyone he wants to lock up, and declare himself President for Life and Lord of Lords.
Even if you are a very bad person, you might rationally hesitate to give someone that much power. Because—guess what?—you might be next on the list.
There are some other considerations, too. For one, the Federalist Society and its cohorts have been on a 40-year quest to take over the courts and impose their regressive views on society, all in the name of “rule of law.” During the first Trump term, their efforts were crowned with success when they got three additional seats on the Supreme Court. But if, henceforth, a judge’s order isn’t worth the paper it’s written on, then the whole Federalist Society effort—to use its version of “law” to force a right-wing agenda down our throats—goes glug glug down the drain.
And then there’s this. If law no longer matters, then a whole lot of the 1,322,649 lawyers in the United States no longer have a useful skill, and they are going to have to do something else for a living.
And, finally, there is this minor consideration. A whole lot of the crazy stuff that Trump and Elon are doing is not only unconstitutional or otherwise illegal but also economically hurtful—sometimes in disastrous ways—for Trump’s own supporters.
No, ladies and germs, there are a lot of reasons why the Supreme Court may not muster five votes to destroy the constitutional republic.
When the situation ripens to a direct conflict between Court and President, there will be conflicting voices other than Vance’s whispering into Trump’s shell-like ears. Vice President Vance will urge him to head headlong into catastrophe. Possibly, however,Orange Jesus might decide to back off. But more probably, in my view, he’ll tell John Roberts to take a long walk off a short cliff.
What then?
I saw George Conway this morning saying that Trump would order the U.S. Marshals Service not to obey the Court’s order, the Service would comply with Trump’s directive, and that would be that. Our constitutional republic would be over and done with.
I think he’s right about the Marshals Service, but predicting in predicting the imminent end of the republic, Conway might be out over his skis.
Half the country—the folks who voted for Kamala—would take to the streets.
And, remember, this would be in a context where lots of Trump voters would have started to suffer from Trump’s disastrous policies, including his unconstitutional and otherwise illegal actions. Tariffs. Trade wars. Slashing the military. Slashing funds for hospitals in rural communities. And on and on and on.
Irresistible force, meet immovable object.
It would appear that Vance and his cohorts are trying to maneuver the situation to a point where Trump has no choice but to (a) back down, bigly, or (b) declare himself Dictator for Life.
Choice (b) would be unpopular with, maybe 65% of the country.
And how will it all turn out? My crystal ball grows cloudy. But I do see blood in the streets.
The International Association of Chiefs of Police (IACP) and the Fraternal Order of Police (FOP) have had long standing and positive relationships with both President Trump and President Biden and have greatly appreciated their support of the policing profession. However, the IACP and FOP are deeply discouraged by the recent pardons and commutations granted by both the Biden and Trump Administrations to individuals convicted of killing or assaulting law enforcement officers. The IACP and FOP firmly believe that those convicted of such crimes should serve their full sentences.
Crimes against law enforcement are not just attacks on individuals or public safety — they are attacks on society and undermine the rule of law. Allowing those convicted of these crimes to be released early diminishes accountability and devalues the sacrifices made by courageous law enforcement officers and their families.
When perpetrators of crimes, especially serious crimes, are not held fully accountable, it sends a dangerous message that the consequences for attacking law enforcement are not severe, potentially emboldening others to commit similar acts of violence.
The IACP and FOP call on policymakers, judicial authorities, and community leaders to ensure that justice is upheld by enforcing full sentences, especially in cases involving violence against law enforcement. This approach reaffirms our commitment to the rule of law, public safety, and the protection of those who risk their lives for our communities.
Facing MAGA 