The federal prosecutor’s office in Manhattan accidentally filed an internal memo that poked holes in the Trump administration’s strategy to kill New York’s toll on driving in Manhattan — arguing the government should change tactics if it wants to block the nascent program.
The memo, intended for a U.S. Department of Transportation attorney, was inadvertently filed Wednesday night in New York’s lawsuit against the administration over its efforts to shut down the fee.
The blunder came days after the Trump administration gave New York a third ultimatum to stop collecting the toll, which started in January and charges most drivers $9 to enter the most traffic-snarled part of the borough.
In the memo, three assistant U.S. attorneys from the Southern District of New York wrote that there is “considerable litigation risk” in defending Transportation Secretary Sean Duffy’s decision to pull federal approval for the toll and that doing so would likely result in a legal loss.
Instead, the three attorneys wrote, the department might have better odds if it tried to end the toll through a different bureaucratic mechanism that would argue it no longer aligns with the federal government’s agenda.
Nicholas Biase, a spokesperson for the Southern District of New York, said in a statement Thursday that the filing was “a completely honest error and was not intentional in any way.”
The Transportation Department, meanwhile, took aim at the Manhattan federal prosecutor’s office and said it was pulling the Southern District off the case.
“Are SDNY lawyers on this case incompetent or was this their attempt to RESIST? At the very least, it’s legal malpractice,” a spokesperson for the agency said.
The statement comes after several top prosecutors in the office resigned and defiantly criticized their bosses in Washington, saying they were asked to handle a now-dismissed corruption case against Mayor Eric Adams in a manner they concluded was unethical, improper and wrong.
Jay Clayton, President Donald Trump’s nominee to lead the office, was sworn in this week.
Trump, whose namesake Trump Tower is within the “congestion pricing” tolling zone, has been a vocal critic of the program and had promised to kill it once he took office.
His administration in February ordered the state to shutter the program, saying it was revoking federal approval for the toll. Duffy has described the program as “a slap in the face to working class Americans and small business owners.”
Within minutes, New York filed suit in federal court to keep the program alive and said it would continue to collect the toll until ordered to stop by a judge.
The Transportation Department repeatedly has urged New York to shut down the toll and has threatened to pull funding and approvals from various transportation projects if it fails to comply.
The toll amount varies on the kind of vehicle and time of day. It has drawn some pushback from suburban commuters in the metropolitan area because it comes on top of existing tolls for crossing bridges and tunnels into the city.
Most drivers end up paying $9 to enter Manhattan south of Central Park on weekdays between 5 a.m. and 9 p.m. and on weekends between 9 a.m. and 9 p.m. The toll costs $2.25 during off hours for most vehicles.
New York officials have argued the program is helping to reduce traffic in the city and will eventually bring in billions of dollars for its subways, commuter trains and public buses.
