In 2024, the DOJ criminally charged various individuals in connection with an alleged Indian bribery scheme. (See here for the prior post).

Gautam Adani, and others, were charged with securities fraud conspiracy and wire fraud conspiracy and several other defendants were charged with conspiracy to violate the FCPA’s anti-bribery provisions, among other charges.

On May 18th, the DOJ filed a consent motion stating: “The government respectfully submits this motion, pursuant to Federal Rule of Criminal Procedure 48(a), requesting that the Court dismiss the indictment in this case with prejudice. The Department of Justice has reviewed this case and has decided, in its prosecutorial discretion, not to devote further resources to these criminal charges against individual defendants.”

As discussed in this post, Judge Nicholas Garaufis (E.D.N.Y.) said not so fast and directed the DOJ “to advise the court of each reason for dismissing the Indictment with prejudice as against all Defendants and to provide the court with sufficient factual support for each basis.”

On July 4th, the DOJ filed it response, a 10 page letter from R. Trent McCotter (Principal Associate Deputy Attorney General). (See here for the prior post).

McCotter’s letter set forth a variety of legal and policy reasons for dismissing the case and also included a section titled “Non-Considerations” which stated:

“There have been stories in the media about the Department’s motion to dismiss the securities charges in this case. I assume the Court would never give credence to breathless reporting relying on anonymous sources. But in an abundance of caution, I address them here.

The current or former Department attorneys who unethically fed those stories have suggested that I sought dismissal of the securities charges at least in part because of some promise by those defendants to invest money in the United States. That is false. Before that topic first arose, I had already firmly concluded I would seek dismissal of the securities charges no matter what, because they were so indefensible. To put a finer point on it: I would have sought dismissal of the securities charges regardless of any mentions of investments, regardless of whether the civil case (or any other matter) was settled or otherwise resolved, regardless of whether the other defendants consented, and regardless of what leakers might try to spin up in the media.

Also, even setting that aside, it is risible to suggest that the Managing Partner of Sullivan & Cromwell, who is perhaps the most respected and experienced securities attorney in the country, would propose any kind of improper resolution, let alone one crafted in a meeting with over a dozen attorneys present, including from other law firms. In a pitch to have charges dismissed, it would have been entirely fair to point out that the defendants have been effectively frozen out of the United States and its financial system for 18 months because of the pending indictment, and also that they had publicly and expressly indicated a desire to invest in the United States even before the prior Administration publicly unveiled its name-and-shame indictment. But again, although such a factor would be entirely fair to consider, I had already resolved beforehand to dismiss the securities charges, and accordingly the mention of potential investments could not have played any role.

Some current or former Department attorneys may disagree with the decision to drop these charges. But it is improper and unethical to leak about the case and thereby attempt to affect its disposition before the Court. Whether to drop a prosecution is not a game—it is an important decision that affects people’s lives. The debate should not be fought through the media in a proxy battle designed to influence the Court. In the end, however, the anonymous leakers stepped on their own landmine: the only thing they have achieved was the submission of this public rejoinder explaining in detail the numerous catastrophic flaws with their case.”

Yesterday, Judge Garaufis issued an order which stated:

“Mr. McCotter’s response to the court’s June 26, 2026 Memorandum & Order raises-for the first time the specter of a possible agreement (involving one or multiple Defendants) in connection with the dismissal of the Indictment that has neither been memorialized nor previously brought to the attention of this court. Here, the court once again notes its appreciation of counsel for Defendant Gautam Adani’s June 24, 2026 letter describing the three appearing Defendants’ reasons for consenting to the Government’s motion to dismiss.  That letter, however, made no mention of any agreement to abandon this case-let alone an agreement to drop the charges in exchange for a defendant’s promise “to invest money in the United States.”

To grant a Rule 48(a) motion-even with the defendant’s consent-the court “should be satisfied that the reasons advanced [by the Government] for the proposed dismissal are substantial and the real grounds upon which the application is based.”

[…]

Consequently, to fulfill its obligations under Rule 48(a) and satisfy itself that no agreement exists in connection with the dismissal of the Indictment, the court DIRECTS Defendant Gautam Adani to respond to the following questions by sworn affidavit no later than Wednesday, July 15, 2026:

Are you aware of anything promised, offered, sought, received, agreed to, or accepted, by anyone, in connection with the dismissal of the Indictment?

Are you aware of any agreement exchanging any thing for the dismissal of the Indictment?