U.S. Attorney Sassoon's Dubious 'Principled Resignation'

My debut with Chronicles, a magazine of American Culture.

Thanks to Mark Pulliam and to Chronicles Magazine.

Prior to her resignation on Feb. 13, Danielle Sassoon was the acting United States attorney for the southern district of New York. She and several of her colleagues resigned following a disagreement with Emil Bove, the principal deputy attorney general. These “courageous” resignations were instigated not by a supposedly “lawless” executive order from President Trump to prosecute his political opponents, but by the opposite: a Department of Justice instruction to Danielle Sassoon to dismiss the case against New York City Mayor Eric Adams, a Democrat.

After four years of unchecked abuses of the government’s prosecutorial power—abuses that shattered all pretense at legal reasoning and had no historical precedent—we’re now awash in so-called “principled resignations.”

Sassoon’s resignation was public. In an eight-page letter leaked to The New York Times, Sassoon claimed that the Trump Justice Department’s decision to terminate the Adams prosecution was unlawful. News outlets touted Sassoon’s “American bravery.” At the same time, they emphasized her “strong conservative” and “Federalist Society credentials.”

But Sassoon and her colleagues (several others resigned as well) are wrong about the law. The Executive Branch (i.e., the president) has exclusive power over criminal prosecutions, a power recognized by the Supreme Court in United States v. Nixon. The insistence of Sassoon’s self-righteousness reflects the opposite of moral courage. The spectacle of radical leftists denouncing law abiding Republicans for refusing to prosecute a minority left-wing Democrat, while at the same time celebrating dubious conservatives for their poor judgment, incoherent legal reasoning, and insincere opportunism masquerading as high principle is something to behold.

At first blush, Sassoon’s arguments seem to reflect the sober deliberation of an experienced prosecutor. After all, the eight-page resignation letter consists of more than 4,300 words and includes dozens of citations. It also references her experience as a Supreme Court and Fourth Circuit clerk. It looks a bit like a resumé!

But how is it that we know about this letter at all? It used to be the case that if a senior manager instructed a low-level public servant to do something of questionable legality, the subordinate could object, report the matter to one of the many inspectors general, rely on whistleblower statutes, and, in the hardest cases, resign. That’s it.

These remedies (objection, inspectors general, whistleblower statutes, and resignation) are ideal responses to lawless executive requests. Ginning up obscure federal charges to prosecute the opposition’s presidential candidate while coordinating with state officials to do the same, as the prior administration did to Donald Trump, easily justified such remedies. Indeed, that lawlessness is now the sine qua non against which future misconduct will be compared. But there were no notable Justice Department resignations in June and August 2023, when Jack Smith indicted Trump for questioning the 2020 election and stealing office paper. Ditto for the Manhattan DA’s office when Alvin Bragg indicted the president for paying “hush money,” even though doing so is not a crime.

But in the Adams case, there was no questionable conduct or lawlessness to justify Sassoon’s resignation. There was a difference of opinion on policy. Sassoon, however, was not in a policy-making role. She was the acting United States attorney, which meant she took direction from those above her in the department’s hierarchy. That includes the president, the attorney general, the deputy attorney general, and Emil Bove, the principal deputy attorney general (not depicted on the chart, but deriving his authority from the deputy attorney general), who issued the instruction to Sassoon. Sassoon’s repeated references (at least six) to the Justice Manual to support her position confirm this point. The Justice Manual, however, merely “sets forth internal Department of Justice policies and procedures.” It is not a law.

At any rate, it’s unusual to resign following an instruction not to prosecute (or to dismiss) —it’s hard to violate anybody’s constitutional rights or any law by not prosecuting him. Nevertheless, Sassoon reasoned that the dismissal “should be called out for what it is: an improper offer of immigration enforcement assistance in exchange for a dismissal of his case.” In other words, the dismissal was improper not because of Adams’ rights but because of the government’s motives. Sassoon offered no legal explanation as to why the president can’t do what she alleged is improper. Instead, she relied on innuendo, which was parroted by NBC, BBC (“explosive allegations of a quid-pro-quo”), and others.

This isn’t the first time public officials have buttressed weak arguments with innuendo. True, it may seem sinister to dismiss a case in exchange for cooperation. Much as it may have seemed sinister that Trump paid Stormy Daniels not to talk about his alleged affair with her. But in that salacious matter it seemed that way because political operatives in the media characterized it as such. They called it the “hush-money” case. They claimed Trump paid Daniels to “buy her silence.” The implication is that paying hush money and buying silence are criminal actions. They aren’t. Using non-disclosure agreements to settle civil disputes is a routine practice that happens thousands of times every year.

Similarly, the Adams dismissal seems sinister because Sassoon called it “improper,” “alarming, and “unlawful.” This was so, according to Sassoon, because senior policy officials were motivated to dismiss the case in the hope that Adams would cooperate on immigration enforcement. But the government does this sort of thing all the time. It forgoes prosecutions, collects fines instead of seeking convictions, downgrades charges, uses informants, grants immunity, offers plea bargains, and seeks reduced sentences. Sometimes, it even interferes in cases for reasons having to do with national security, as it may have done in this Adams case. And, of course, the president may simply pardon any person he chooses for any or no reason. These are all examples of the government taking a less severe prosecutorial stance for reasons extraneous to a defendant’s guilt. By Sassoon’s logic, all of it is “improper.”

Sassoon also seems to think that Federal Rule of Criminal Procedure 48(a) permits a court to refuse a government motion to dismiss when “it is prompted by considerations clearly contrary to the public interest.” Perhaps. But this is beside the point. While a court may deny a motion to dismiss, it may not compel the Executive branch to advance a prosecution in the face of that denial.

As the estimable John Lucas reminds us, the three branches of government are co-equal. The Judiciary may not compel the Executive to exercise its exclusive powers. Criminal prosecution is one of those exclusive powers. As Biden’s Solicitor General Elizabeth Prelogar said in her Senate confirmation hearing: “the Executive Branch has exclusive authority and absolute discretion to decide whether to prosecute a case.” Prelogar was quoting United States v. Nixon, a Supreme Court case that makes no appearance in Sassoon’s resignation letter, her high court clerkships notwithstanding.

It might be good policy to have a reason not to prosecute, but the Executive doesn’t need one. Sassoon appears not to have considered this. Instead, she claims that dismissing the Adams case is contrary to the public interest because “it is unclear why Adams would be better able to aid in immigration enforcement” if he’s not prosecuted. Whether Adams will be better situated to assist the government is legally irrelevant, though it’s probably true that he will be in a better position to assist the administration if not bogged down by legal action. I imagine many New Yorkers might see the dismissal as supporting their interests, given the tens of thousands of illegal aliens in the city. “Get them the hell off the street” sounds unequivocal. At any rate, Sassoon’s opinion that the dismissal is not in the public’s interest raises no legal question about the Executive’s prosecution power at all. It’s just her opinion and no one elected her to implement it.

Sassoon’s letter misstates the Executive’s power, confuses the law, and intersperses irrelevant policy concerns. Her incoherence is reflected in New York Governor Kathy Hochul’s statement about the Adams dismissal: “This is not supposed to happen in our system of justice.” It’s not clear what “this” refers to. The most succinct description of “this” affair is that one political party (the Republicans) decided not to use the criminal justice system against a political figure of the other party (Adams) and may stand to gain politically from it. Perhaps Sassoon and Hochul object to the de-weaponization of the criminal justice system under Trump’s Department of Justice.

To their credit, not everybody caught up in this Adams kerfuffle behaved poorly. Biden holdovers Kevin Driscoll (former acting head of Justice Department’s criminal division) and John Keller (former acting head of the public integrity section) seemed to have resigned without airing their disagreements in public. But they are now exceptions to the new rule.

That new rule seems to be something like this: When you’re ready to leave, find some pretense to justify your action to the whole world while getting a jump on marketing for your next private sector gig. Jack Smith, a perennial and beleaguered mercenary for left-wing political hitjobs, blazed the path just weeks ago. Though his lengthy obsession with prosecuting his political opponents failed he also made his resignation in public.

For Smith, though, leaking to The New York Times was insufficient. Instead, he sought to violate Justice Department policy and Donald Trump’s due process rights (and the due process rights of Walt Nauta and Carlos de Oliviera), by disclosing a full report to Congress. A report that he wrote. Smith insisted that the public must know what he knew because, well, he believed it. And now we all know what Sassoon believes.

All that remains is for Smith and Sassoon to capitalize on their public homage to left-wing shibboleths by landing gigs at big law firms. In Smith’s case, his recent flirtation with Covington & Burling, from whom he received $140,000 in free legal services, suggests he’s on track to do so.

As for Sassoon, we’ll see what comes next. My money is on a white-collar practice group at a big law firm. Partner, of course.

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