Deleting Evidence? Think Again: Lessons From The Eric Adams Scandal
More and more relevant data travels through phones, as this case shows.
(Photo by TIMOTHY A. CLARY/AFP via Getty Images)
New York Mayor Eric Adams faces a five-count indictment that boils down to a bribery scheme involving illegal foreign donations. As this Supreme Court has made pretty clear that it doesn’t think most bribery is a crime, Adams and his high-powered lawyers are leaning into recasting all those payments as innocent gratuities from Turkey for good government service rendered.
And by “good government service rendered” we mean “waiving fire codes.”
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The allegations in the indictment include specific references to a dizzying array of incriminating messages grabbed from phones seized from the mayor and his team. Making the whole affair a valuable reminder that some — if not most — people are very, very stupid about their phones. Or what they think they’ve deleted or otherwise kept hidden on their phones.
That’s a big deal for everyone who isn’t stupid. Because phones are increasingly taking over as our discoverable evidence repositories. And forensics expert David Greetham of Level Legal sees this transition from paper to computer to phone as the primary vector of evidence as accelerating. “Last year, it was 52% of mobile devices — the first time it had been more than half — and so far this year we’re at 64%,” he said.
Whether it’s a criminal conspiracy leaving a glaring digital paper trail or civil litigants creating themselves a nightmare discovery problem, let’s consider a few of the ridiculous data collection issues involved in this case.
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When Adams handed over his personal cellphone to the FBI, he told them it was locked because he’d forgotten the passcode because he’d recently changed it to protect the evidence from his staff potentially deleting it.
ADAMS claimed that after he learned about the investigation into his conduct, he changed the password on November 5, 2024, and increased the complexity of his password from four digits to six. ADAMS had done this, he claimed, to prevent members of his staff from inadvertently or intentionally deleting the contents of his phone because, according to ADAMS, he wished to preserve the contents of his phone due to the investigation.
How conscientious of him!
Note that he also doesn’t have his phone set up to open through facial recognition, complicating the process since forcing someone to open their phone through facial recognition avoids a lot of Fifth Amendment self-incrimination issues if it’s non-testimonial. Surely this is coincidence.
So far, the government hasn’t cracked the code yet.
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Bathroom Break To Do A Number 3 (Delete Incriminating Evidence)
Among the more comical episodes included in the indictment involved an Adams staffer who allegedly showed up to chat with the government and then tried to take a quick break to shed some potential evidence
The Adams Staffer also agreed to speak with FBI agents and falsely denied the criminal conduct of herself and ADAMS, among others. At one point during her voluntary interview, the Adams Staffer excused herself to a bathroom and, while there, deleted the encrypted messaging applications she had used to communicate with ADAMS, the Promoter, the Turkish Official, the Airline Manager, and others.
Once you’re talking to the FBI… they already know about the messaging apps.
But it’s even more futile than that. Greetham explained that people don’t seem to understand that removing the app from the phone is pretty much useless.
I think what people forget is that, if you destroy your phone, or you forget your passcode, or you upgrade your phone, the messaging apps survive that. Messaging apps like Signal, Telegram, Snapchat, ephemeral messaging — you can log on on a different phone. It’s not built into the OS in the same way SMS or iMessage for iPhone is.
And even iMessage messages can be recoverable through iCloud if the user employs that system.
Even without getting into the user’s account through another device, an FBI document uncovered by a FOIA request a few years ago suggested that the government may have limited access to information on these encrypted services already.
But the moral of the story is that removing the app as a cute icon on the phone is not doing much to clear that evidence.
It will go a long way toward making you look like you’re engaged in spoliation generally though!
Gone But Not Forgotten
In addition, in March 2019, while exchanging text messages to plan another possible to trip to Turkey in which the Airline Manager would arrange travel for ADAMS, the Adams Staffer texted ADAMS, “To be o[n the] safe side Please Delete all messages you send me.” ADAMS responded, “Always do.”
Pobody’s nerfect!
Unfortunately, this is one of those moves where 99 percent still isn’t enough. Because the existence of even one message like this sets up the prosecutor or adversary counsel to seek negative inferences and it sets up a forensics expert to do a little more digging. Greetham compared it to a situation that “happens more than you think,” where a computer may appear clean but “you check some internet history, and you’d find the recent search terms were, ‘how do I delete data without being caught?'”
But if Adams really meant “USUALLY do.” It turns out there are still ways to potentially recover deleted messages. But there is a cost. Greetham explains:
In cases where you need deleted messages, you take more of full forensic image like the old way of doing laptops and desktops. The downside to that is that the iOS updates that come out very frequently have added security every time [ed. note: we were using the example of an iPhone, but the issue is similar for other phones]. And with the current iOS version, the only known way to do that is to jailbreak the phone. And technically jailbreaking the phone is changing the evidence.
That said, “changing the evidence” in this manner isn’t the end of the world. There are procedures for authenticating the results involving witnesses supervising the project that can affirm that nothing in the process compromised the ultimately relevant data. But it’s an additional consideration to evaluate before rooting around in a phone looking for deleted messages still buried in the database.
Of course, maybe the government won’t need to get all the way into the deleted messages…
Some people are very stupid about their phones. It’s possible that some people are just very stupid generally.
Earlier: Eric Adams Argues That Turkish Delights Slipped Into His Pasties Were Tips, Not Bribes
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter or Bluesky if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.
