Paul Clement will never be tainted as some bleeding heart lefty lawyer, not that such an animal exists or, if he exists, is necessarily wrong. When Southern District of New York Judge Dale Ho appointed him amicus for the purpose of trying to get an honest argument before making his decision on the government’s motion to dismiss the prosecution against New York City Mayor Eric Adams, the court knew what it was doing. After all, when prosecution and defense are holding hands and blowing kisses, it’s about as clear as it can be that the court isn’t getting any argument contrary to what the loving couple wants it to get.

And Paul Clement did not disappoint.

The government’s own recent filings reflect a belief that this prosecution was initiated in bad faith. Other information that has become public casts doubt on that claim and suggests the decision to dismiss the indictment was undertaken in bad faith. It is almost certainly beyond the judicial ken to definitively resolve that intramural dispute among executive-branch prosecutors. It is also unnecessary. Under either view, there is little justification for preserving the possibility of re-indictment by dismissing without prejudice. While the “salient issue” for the court concerns the decision to terminate, not initiate, the prosecution, Rinaldi, 434 U.S. at 30, if political considerations improperly influenced the initial decision to seek the defendant’s indictment, then dismissal with prejudice would definitively eliminate that taint. And if improper considerations tainted the decision to seek dismissal, then there is a fortiori every reason to protect the defendant from the threat of re-indictment.

See what he did there? His point wasn’t that the court was in a position to deny the motion, per se, as it remained the government’s prerogative to prosecute or not, whether for legitimate reasons or corrupt reasons. The court could no more refuse to allow the government to end a prosecution than it could demand the executive commence a prosecution, though the two aren’t quite the same as the passage suggests. After all, once the government has invoked the authority of the courts, a different situation exists than when there is no case or controversy. Judges aren’t inquisitors under our legal system, on the one hand. Judges aren’t patsies of the executive under our legal system either.

But the “leave of court” condition isn’t meaningless either.

Three additional, closely related factors support dismissal with prejudice as the appropriate remedy here. First, the fact that this case involves a currently serving elected official raises distinct concerns that are eliminated by a dismissal with prejudice but exacerbated by a without-prejudice dismissal. Prosecutions of incumbent public officials are among the Justice Department’s most sensitive undertakings and raise inevitable suspicions of political motivations or improper leverage over the official’s discharge of his duties to constituents. Even the appearance that the prospect of re-indictment would cause public officials to be more attendant to the executive branch than to constituents is deeply troubling and raises serious accountability concerns. A dismissal without prejudice fuels those concerns by expressly preserving the possibility of re-indictment.

Second, dismissal with prejudice more closely resembles the options the executive can achieve unilaterally, while dismissal without prejudice leaves the accused subject to re-indictment at the executive’s discretion. Nothing a court can do under Rule 48 can prevent the President from issuing a pardon that ends the prosecution and typically precludes further jeopardy for the offense (and even a conditional pardon must make any conditions explicit). Similarly, the unreviewable executive decision to refrain from prosecution leaves the individual’s liberty untouched. Dismissal without prejudice, by contrast, leaves a once-indicted defendant in a uniquely vulnerable position.

Third, dismissal with prejudice best accords with the principal office of Rule 48(a) in particular and the separations of powers more generally—namely, the promotion of individual liberty. The prospect of the court ordering the prosecution to proceed runs directly counter to the court’s usual liberty-preserving role in a criminal trial. Insisting on dismissal with prejudice, by contrast, preserves individual liberty while eliminating the problematic incentives and appearance issues occasioned by a without-prejudice dismissal of an incumbent public official.

Whether or not Mayor Adams committed the crimes with which he was charged is a question that remains unresolved. He’s innocent because he has not been convicted of any crime, and that’s the way we roll. No matter how strong the evidence, or how strong the belief in his guilt may be, Adams hasn’t had his day in court and, despite some people’s belief that the presumption of innocence is just some legal mumbo jumbo that can be ignored at will, even Adams gets to challenge the accusations and unless and until that happens, we are deluding ourselves if we believe we know the “truth” when neither plea nor conviction after trial has happened.

But Clement’s contention that dismissal without prejudice, which is key to the Trump administration keeping its loving puppy on a tight leash, is anathema to both a legitimate legal and political process is exactly right. Of course, without having a stick over Adams’ head with which to beat him if he doesn’t shine Homan’s shoes fast enough defeats the Trump administration’s purpose of dismissing the case against the mayor of New York City. After all, it’s not as if Trump has any love for Adams, per se, or that Emil Bove gives a damn whether Adams is guilty or not.

The point, and only point, to this dismissal is to keep a puppet mayor in office while being able to hold the threat of reprosecution over his head to make sure he does what he’s told. But having moved for dismissal, albeit without prejudice, and now having the very conservative Paul Clement step in to present an honest argument where before there was none, more often than not, amici stick their nose in to push their agenda, which may prove not to be very friendly to the court at all. This time, amicus did what a friend is supposed to do: provide an honest answer.

Judge Ho is positioned to both do the one thing the law enables him to do, and the right thing to do. Dismissal with prejudice was the obvious answer to the dilemma created by Bove’s machinations, and burns the Trump administration’s purpose of owning Adams and his exercise of power as mayor of New York City.