The controversial prosecution of New York Mayor Eric Adams has a legal-writing silver lining: The Court asked for an amicus trial brief from Supreme Court brief-writer extraordinaire Paul Clement. Lurking within are five great writing tips for the rest of us along with choice excerpts for your inspiration at the screen.
1. Start a new paragraph by either echoing a point you just made or using a logical transition to guide the reader in a new direction
Since their adoption in the 1940s, the Federal Rules of Criminal Procedure have consistently provided (with minor changes in wording) that “[t]he government may, with leave of court, dismiss an indictment.” Fed. R. Crim. P. 48(a) (emphasis added) . . . .
The same basic separation-of-powers principles that counsel against a court maintaining a prosecution over the executive’s objection support dismissal with prejudice here . . . .
These general principles inform the specific questions the Court has asked the parties and amicus to address . . . .
In short, Rule 48(a) gives this Court a vital, but limited, role in determining whether dismissal should be with or without dismissal. And all roads here—including the same separationof-powers principles that constrain the Court’s options—lead to dismissal with prejudice.
2. Highlight why the outcome matters practically—but then tie it back to the law
There is an inherent risk that once an indictment has been procured, 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 prospect explains the absence of deferred prosecution agreements involving public officials.
3. Favor snippets of quoted language merged into your own points over long copied-and-pasted sentences
Constitutional separation-of-powers principles play a particularly critical role in securing individual liberty in the context that poses one of the most direct and obvious threats to that liberty—namely, federal criminal prosecutions. Unlike the dynamic in many other countries, here “no one can be convicted of a crime without the concurrence of all three branches.” Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978). Congress must first pass a law, see, e.g., United States v. Hudson, 11 U.S. (7 Cranch) 32 (1812) (rejecting common-law crimes); the executive must exercise its discretion to initiate a prosecution (and, for most crimes, secure an indictment); and the judiciary must oversee a fair trial leading to a conviction. See also United States v. Cox, 342 F.2d 167, 186 (5th Cir. 1965) (Wisdom, J., concurring) (emphasizing that “the Grand Jury” protects liberty and “earned its place in the Bill of Rights by its shield, not by its sword”).
4. Preempt counterarguments with a “Yes, but” structure that highlights apparent weak spots confidently before explaining why they fail to carry the day
To be sure, an argument can be made—and has been made, see Dkts.128-1, 150-1— that the court can go further and effectively try to force the executive to maintain a prosecution it wishes to drop. But there are both practical and doctrinal problems with that extraordinary course.
To be sure, Rinaldi indicates that bad faith will not be presumed, 434 U.S. at 30, and the Second Circuit has held that “[i]n the absence of evidence to the contrary, the Department of Justice is entitled to a presumption of regularity—that is, a presumption that it is lawfully discharging its duties.” HSBC, 863 F.3d at 129; accord, e.g., United States v. Toyota Motor Corp., 278 F. Supp. 3d 811, 813 (S.D.N.Y. 2017). In the ordinary case, there will be little basis for overcoming that presumption. But a presumption is only that, not an absolute bar to judicial inquiry. And the
There is one narrow context in which the Supreme Court has recognized that a court has authority to exercise what would otherwise be a core executive function: “[I]t is long settled that courts possess inherent authority to initiate contempt proceedings for disobedience to their orders, authority which necessarily encompasses the ability to appoint a private attorney to prosecute the contempt.” Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787, 793 (1987). While the precise provenance of that authority is contestable, see id. at 815-25 (Scalia, J., concurring in the judgment), the Supreme Court has upheld it as “essential to ensuring that the Judiciary has a means to vindicate its own authority without complete dependence on other Branches,” id. at 796 (majority op.). As Young explained, “[i]f the Judiciary were completely dependent on the Executive Branch to redress direct affronts to its authority, it would be powerless to protect itself if that Branch declined prosecution.” Id. at 801. But a court’s authority to initiate a contempt prosecution is limited by a rule of necessity: it should be “exercise[d] ... only as a last resort.” Id.
5. Make your conclusion as commanding as your introduction by counting off the main reasons you win
To summarize, the foregoing principles and precedents inform the answers to the questions posed in the February 21 order and support dismissal with prejudice here:
First, Rule 48(a) vests courts with an important, but limited, role—one that is principally focused on how, not whether, a prosecution should be dismissed.
Second, in deciding whether to grant leave to dismiss an indictment with or without prejudice, a court is not restricted to the four corners of the Rule 48(a) motion itself. In fact, the Supreme Court has indicated that the judicial role can properly extend to “examination of the record” in the case. Rinaldi, 434 U.S. at 30. Moreover, whatever special showing that would be appropriate before a court could explore non-public deliberations, there is no reason for a court to ignore materials that have become public.
Third, “there is no binding law preventing the court from investigating whether the