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By Elie Honig
Soon-to-be former governor Andrew Cuomo has four days left in the two weeks notice period he generously granted to himself before he finally, mercifully departs from New York state’s Executive Chamber. No doubt, he will go out on Tuesday with some characteristically grandiose, delusional statement trumpeting his own greatness, bemoaning his fate, and laying groundwork for what he envisions as his grand comeback. I expect genuine contrition and self-reflection to be scarce. It will be a low moment in New York politics, and for Andrew Cuomo himself.
But if you’re expecting things to get even more grim for Cuomo — if you’ve got visions of handcuffs and an orange jumpsuit — don’t bet on it.
Of the eleven complainants discussed in the AG’s investigative report, four — Lindsay Boylan plus three women identified in the report as “Executive Assistant #1,” “Trooper #1,” and “State Entity Employee #1” — allege that Cuomo touched them in some unwanted, non-consensual, sexual manner. That conduct, if proven, would be criminal under New York state laws prohibiting forcible touching (a “Class A” misdemeanor punishable by a maximum of one year in prison) and sexual contact (a “Class B” misdemeanor punishable by three months max).
We know that at least five district attorneys — for New York (Manhattan), Albany, Westchester, Nassau, and Oswego counties — have opened criminal investigations of Cuomo and requested materials from Attorney General Letitia James. But don’t be swayed by the numerosity here; the fact that a lot of different prosecutors are investigating doesn’t make it more likely that any one of them will file a charge. Each DA will have to make an independent decision about whether to pull the trigger on criminal charges against the former governor. And each DA will stand alone; they don’t get to hold hands and go in all together as a group here. There will be no safety in numbers.
The DAs did the right thing, and the necessary thing, by asking James for her files and publicly announcing their investigations. But that’s the easy part. Now each DA will have to confront the daunting burden necessary for any criminal conviction in the United States: proof beyond a reasonable doubt.
Technically, prosecutors only need to establish “probable cause” to bring a criminal charge — meaning just a tiny smidge over 50% likelihood that the defendant committed the charged offense. But no responsible prosecutor bases a criminal charge on proof that just barely skims over the top of probable cause. Particularly where a case against a high-profile defendant is likely to generate blockbuster headlines, a prosecutor will want proof beyond a reasonable doubt, or something very close to that, in hand before authorizing a charge.
So how are prosecutors looking at Cuomo’s conduct, as set forth in the AG’s report? I instinctively recoil at the phrase “he said, she said.” There are sexist implications to that terminology, which has far too often been used to shrug off credible allegations by women against men: eh, she says it happened, he said it didn’t, what are you gonna do? It also oversimplifies the prosecutor’s imperative to go beyond the face of the allegations (and denials) and to find independent evidence that supports either side. Are there other witnesses? Is there physical evidence? Any recordings? Did the complainant tell other people about the incident, at the time or later? Does one party’s story simply make more sense than the other’s?
On balance here, the AG’s report sets forth facially credible allegations by each of the women who detail potentially criminal conduct by Cuomo. There are pieces of incidental or circumstantial corroboration for some aspects of the claims, but there also isn’t much that independently corroborates the core of the allegations. Cuomo’s lawyer, Rita Glavin (a former SDNY colleague of mine and an excellent attorney, in my view) poked holes in some key aspects of the AG’s report, including legitimate questions about the timing of the most egregious conduct, Cuomo’s alleged forcible touching of Executive Assistant #1 under her blouse and over her bra. I have little doubt that that incident occurred as alleged, but “I instinctively believe it” is a different ballgame than “I can prove it beyond a reasonable doubt to a unanimous jury.”
The allegations here carry persuasive force in part because of sheer volume, because eleven women came forward with allegations against Cuomo, all facially credible. Why (and how) would eleven people just make up damning allegations about Cuomo? Why would these women, many of whom have never met one another, all decide to lie about one man? These are fair questions, and important ones, in the real world.
But it doesn’t work that way in court. Any criminal charges here are likely to stand alone. If, say, the Albany County DA chose to bring charges based on the groping allegations made by Executive Assistant #1, then that’s likely all a judge or jury would consider in determining guilt. A judge might admit evidence relating to the broader course of conduct by Cuomo towards the particular complainant in the case, but allegations from the other ten women would likely be excluded as what lawyers call inadmissible “other acts” evidence.
If Cuomo is charged, prosecutors should expect him to fight it out to the bitter end. The vast majority of criminal defendants end up pleading guilty and, candidly, prosecutors sometimes depend on this: just bring the charges, and I’m sure we’ll work out some kind of plea deal eventually. But Cuomo wouldn’t be anything like the typical defendant. He is famously stubborn (to put it mildly) and he has remained defiant in his recent public statements. Put it this way: can you see Cuomo accepting a guilty plea to a criminal sexual offense? Me neither. Any prosecutor who charges Cuomo better be ready to go all the way to trial.
Even if Cuomo is charged, tried, and found guilty by a unanimous jury beyond a reasonable doubt, he is unlikely to go to prison. The potentially applicable offenses here are misdemeanors, technically punishable by a maximum of one year behind bars. But in reality, virtually nobody gets locked up on a first-time conviction for a misdemeanor. I didn’t deal with many misdemeanors, but I prosecuted a few and supervised more than that, particularly when I was with the state AG’s office. Off the top of my head, I can’t think of a single case where a first-time offender went to prison for a misdemeanor.
Here’s another factor weighing against a criminal charge: Cuomo will soon be gone. Prosecutors would never admit to this publicly — on the record, you’d surely get the standard “we evaluate every case dispassionately based solely on the law and the facts” line — but of course an elected prosecutor takes into account the political pressures around a charging decision. Imagine if Cuomo defiantly remained in office. The public pressure to do something, to knock him out, to hold him meaningfully accountable, would be intense. But with Cuomo gone, and increasingly irrelevant, the impetus to go after him will naturally be blunted.
To be clear, I’m not saying Cuomo should not (or should, for that matter) be charged criminally. I’d need access to all the evidence to make that decision. I am saying that given the substance of the AG’s report, and political reality, it’s unlikely he will be charged. It’s still more unlikely he’ll be convicted, and even if he is, he almost certainly won’t go to prison.
Cuomo will soon leave office in disgrace. His legacy will be defined by his abusive mistreatment of women in the workplace and beyond. Because of prevailing legal and political dynamics, Cuomo almost certainly won’t end up behind bars. But don’t mistake that for any type of meaningful vindication.