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By Elie Honig

Dear Listener,

The political fate of New York Governor Andrew Cuomo will, it seems, come down to a question of public attention span.  

Back in March, New York Attorney General Letitia James appointed two independent lawyers (including my former SDNY colleague Joon Kim) to investigate allegations of sexual harassment and other impropriety brought by several women against Cuomo. The investigators reportedly have interviewed many or all of those accusers and, recently, Cuomo himself — indicating that their work is nearly done. The question now is whether the dark clouds that once hung over Cuomo, and the public fury directed at him, have just sort of, well, moved on.

During the past four months, Cuomo seems to have adopted this strategy: go into the bunker while the furious first blast of the storm passes, slowly emerge and act like a regular governor doing the day-to-day business of governing, and hope the public tempest has passed and never returns, at least not to full gale force. Remarkably — given how bleak things looked for Cuomo this past spring — it just might work.   

This is, in a way, the anti-Franken strategy. As allegations of sexual impropriety mounted against the Democratic Minnesota Senator in 2017, and prominent members of his own party called for him to resign, Franken did what was then widely perceived as “the right thing” and stepped down. Franken’s resignation, seismic as it was, was more the norm than the exception back then; in just the two days before his departure, Congressmen Trent Franks and John Conyers also stepped down amid swirling sexual harassment claims.   

This was only four years ago, but it all seems so antiquated now. Franken himself has since said that he “absolutely” regrets resigning. Indeed, since the Franken resignation, politicians have steered hard into the opposite approach: “I’m not going anywhere unless you make me.”

The patron saint of this defiance is, of course, former President Donald Trump. Trump has been accused by dozens of women of conduct that goes beyond the allegations against Cuomo, including forcible rape. And Trump has lent at least circumstantial corroboration to those allegations by boasting on tape of his own willingness to, well, grab ‘em by… (you know the rest). Yet all of this hardly amounted to a bump in Trump’s political road. He refused to step aside as the Republican presidential nominee when the “grab ‘em” tape surfaced, he won the 2016 election just weeks later, and he never gave even a whit of thought to resigning in the face of the tidal wave of accusations that arose while he was in office, angrily denying the ones he even deigned to acknowledge. Who could forget his grotesque response to E. Jean Carroll’s sexual assault allegation: “She’s not my type.” Republican leaders utterly failed to hold Trump accountable and, eventually, the world just sort of moved on. (Though lawsuits by Carroll and others continue in the courts, where a bizarrely timid Merrick Garland-led DOJ has decided to try to pick up the mantle of Trump’s defense, at taxpayer expense.) 

The defiant model of crisis management has spread beyond allegations of sexual misconduct. When photos emerged in 2019 of Democratic Governor Ralph Northam of Virginia either in blackface or wearing a Ku Klux Klan hood — Northam at first seemed to acknowledge that he was one of the two people pictured in the photo that appeared on his own medical school yearbook page, but later, incredibly, seemed to suggest that maybe he was neither — he apologized (sorta) and then went about his business.  You remember what happened to Northam, right? Nothing. He’s still Governor of Virginia, to this day.

Will Cuomo be able to pull a Northam? That’ll ultimately be up to New York’s elected state-level officials, many of whom initially made bold public proclamations demanding accountability from the Governor. Dozens of the state’s top officials in Albany, including the Democratic leaders of both the state Assembly and Senate, have called for Cuomo to resign. So, too, have prominent Democratic federal officials, from Senators Chuck Schumer and Kirsten Gillibrand to Representatives Alexandria Ocasio-Cortez and Jerry Nadler — though their powers here are more persuasive than practical given that state, not federal, officials control the impeachment process to remove a governor.

Impeachment is very much on the table here, pending the results of the investigation, which we should see soon. If the investigation largely confirms the public accusations against Cuomo, then impeachment will be the only political remedy available if New York state legislators intend to turn their prior calls for resignation into anything more than empty rhetoric.

While impeachment is commonly associated with U.S. presidents, it also can apply to other federal officials and to state officials. The impeachment process in New York state is similar, but not identical, to the federal process with which we are all now amply familiar (thanks largely to Trump and his two recent go-rounds). 

First, the New York state Assembly can impeach by a majority vote, just as the U.S. House of Representatives can impeach a president by a simple majority.  But then things diverge a bit.  In New York, once a Governor is impeached, he temporarily loses power, which passes over to the Lieutenant Governor (in this case, Kathy Hochul) during the pendency of the impeachment process.  Here’s another potentially important difference: while the U.S. Constitution requires “high crimes and misdemeanors” to impeach, the New York State Constitution includes no such language, and allows impeachment for a broader range of offenses.

A special “court for the trial of impeachments” conducts the impeachment trial. That body includes all members of the New York state Senate, plus the judges of the Court of Appeals (the highest state court in New York). If two-thirds of the members of that group return a guilty verdict, then the governor is a goner.

If he is impeached and removed, Cuomo will join Willam Sulzer in the history books. In 1913, Sulzer was impeached, convicted, and removed from office as Governor of New York over purported campaign finance violations (though there is a historical consensus that the impeachment process was unfairly weaponized by Sulzer’s political opponents). And Cuomo would be listed under “American governors removed by impeachment” just one spot below the infamous former Illinois Governor Rod Blagojevich, who was impeached, convicted, and removed from office in 2009. (Blagojevich also was criminally prosecuted and convicted, and then had his sentence commuted by Trump in 2020; everything comes full circle in the world of corruption.) 

Cuomo’s fate may well come down to public attention span. New York’s Democratic party leaders months ago threw down an ultimatum, but Cuomo refused to budge. If the investigative report confirms the accusations against the Governor, and if public outrage is rekindled, then New York officials will have little choice but to back up their own words with action through impeachment. (Though it’ll be interesting to see whether any back away from or try to dilute their prior calls for his resignation; let’s just say, it wouldn’t shock me.) But as time passes, and public attention wanders and wanes, it becomes more likely that, unimaginable as it once seemed, Cuomo just might slip through a devastating scandal with no meaningful consequence.

Stay Informed,