Since Judge Ho appointed Paul Clement as an amicus in the Eric Adams case, I have been trying to find an answer to a question: has there ever been a deferred prosecution agreement for a public official. The United States routinely enters into civil consent decrees with public officials. And the United States enters into deferred prosecution agreements with government contractors. At least in the case of Boeing, the government was likely motivated by a concern that barring the aerospace giant would impact American interests.
But I’ve asked around, and could not find an answer to my question about DPAs for public officials.
Clement’s brief makes this assertion:
There is an inherent risk that once an indictment has been procured, the prospect of re-indictment 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 prospect explains the absence of deferred prosecution agreements involving public officials.
Clement does not offer a citation. I realize it is hard to prove a negative here. How can you show that something has never happened? What if the government has used a DPA for a public official? And though I take officer stuff carefully, Clement does not distinguish between elected and appointed officials. What about civil servants? Has there really never been any person in government who received a DPA from the federal government? And if the answer is yes, then why would Mayor Adams be different.
I often tell my students to never say the word never. If someone finds a single instance where something happened, your argument is shot.
Let’s see what turns up.
