• Show Notes
  • Transcript

In this episode of the CAFE Insider podcast, Preet and Joyce react to the resignation of New York Governor Andrew Cuomo and break down the report on Cuomo’s alleged sexual harassment issued by the Office of the New York State Attorney General. They also discuss reporting from the New Yorker’s Ronan Farrow that details a previously-undisclosed 2014 phone call that Cuomo made to the Obama White House regarding Preet and SDNY’s investigation into corruption in Albany

We hope you’re finding CAFE Insider informative. Email us at letters@cafe.com with your suggestions and questions for Preet and Joyce. 

This podcast is brought to you by CAFE Studios and Vox Media Podcast Network. 

Tamara Sepper – Executive Producer; Adam Waller – Senior Editorial Producer; Matthew Billy – Audio Producer; Jake Kaplan – Editorial Producer

REFERENCES & SUPPLEMENTAL MATERIALS:

ANDREW CUOMO

“We’re not the only ones obsessed with Preet Bharara. Plus, the vaccine mandate divide and Friend of Pivot Lt. Col. Alexander Vindman,” Pivot, 8/10/21

NY Penal Law §130.52 – Forcible Touching

NY Penal Law §130.55 – Sexual abuse in the third degree

“Report of Investigation Into Allegations of Sexual Harassment by Governor Andrew M. Cuomo,” NY Attorney General report, 8/3/21

“Position Statement of Governor Andrew M. Cuomo Concerning the Sexual Harassment Allegations Made Against Him,” Governor Cuomo attorney Rita Glavin response, 8/3/21

“Response to Special Investigators’ Report,” Executive Chamber attorney Paul Fishman letter, 8/4/21

“Response to Allegations of Retaliation by the Executive Chamber of the State of New York Against Lindsey Boylan,” Executive Chamber attorney Paul Fishman letter, 7/18/21 

“Independent Investigators Find Governor Cuomo Sexually Harassed Multiple Women, Violated State and Federal Laws,” NY Attorney General press release, 8/3/21

“Andrew Cuomo’s War Against a Federal Prosecutor,” The New Yorker, 8/10/21

“Cuomo’s Top Aide, Melissa DeRosa, Resigns as He Fights to Survive,” NYT, 8/8/21

“Albany sheriff vows ‘very comprehensive investigation’ into criminal complaint against Gov. Cuomo,” WaPo, 8/7/21

VIDEO: Cuomo resigns amid sexual harassment allegations, 8/10/21

VIDEO: Attorneys for Governor Cuomo speak on New York attorney general’s independent reviewer report, 8/6/21

Preet Bharara:

From CAFE and the Vox Media Podcast Network, welcome to CAFE Insider. I’m Preet Bharara.

Joyce Vance:

And I’m Joyce Vance.

Preet Bharara:

We finished recording this week’s episode about an hour ago. The Governor of the state of New York, Andrew Cuomo, announced his resignation from the governorship, effective in 14 days.

Joyce Vance:

This morning, we discussed events that will continue even with the Governor’s resignation. There will still likely be criminal investigations. There will still, more than likely, be some civil lawsuits. It’s interesting to note that this resignation was couched by the Governor in this way. He said …

Andrew Cuomo:

In my mind, I’ve never crossed the line with anyone. But I didn’t realize the extent to which the line has been redrawn. There are generational and cultural shifts that I just didn’t fully appreciate. And I should have. No excuses.

Joyce Vance:

Were you surprised he resigned, Preet?

Preet Bharara:

I would have been surprised a few days ago. But I think since Sunday, since Melissa DeRosa … his actually top aide … resigned, I think the handwriting has been on the wall. I think also, the explanation you just read is kind of bizarre. He’s not some ordinary person who doesn’t know anything about sexual harassment, he’s the chief executive of the state. He has been a loud advocate in the #MeToo movement. He has touted his laws and guidance and regulations, with respect to sexual harassment. It’s something you would presume he knew about, since he claimed to be a champion of those issues. So it falls a little bit short.

Preet Bharara:

I think the state should be happy and relieved that Andrew Cuomo has resigned. I think a couple of things are worth pointing out. And one is sometimes you resign because you’re cutting your losses. Lots of these things will continue to proceed, but remains to be seen what happens in the state legislature. It’s not just the issues relating to the sexual harassment, but also the way he dealt with the counting of deaths in nursing homes due to COVID. Whether or not he believes that might not come to some fruition, or that might be derailed in some way by his resigning or become irrelevant because he’s no longer Governor, I don’t know. But this is a person who doesn’t resign necessarily out of the goodness of his heart in wanting to spare other people things, in my view. He’s a person who resigned when he realizes the evidence is insurmountable.

Preet Bharara:

What do you think?

Joyce Vance:

I think that’s right. And it was clear with his statements, with his effort to explain the incident with the trooper, that he just doesn’t have a defense. Like so many people, he’s been caught. He can’t accept responsibility for he did. He has to keep coming with efforts to say it wasn’t what people want to make it out to be.

Joyce Vance:

But particularly with the trooper, he says, “Well, if she says that I touched her, I don’t recall it. But I believe her if she says that.” And the next part he says really brings home, for me, the reason he had to resign, his total failure to have a defense. His explanation for touching the trooper is …

Andrew Cuomo:

When I walk past them, I often will give them a grip of the arm, a pat on the face, a touch on the stomach, a slap on the back. It’s my way of saying, “I see you, I appreciate you, and I thank you.”

Joyce Vance:

Immediately, you’re thinking, “He’s in trouble. He doesn’t have an explanation for what happened here.” He doesn’t even try to explain saying, “Hey, you,” and trailing his fingers down her back. Instead, he says, “It was a mistake. I apologize.” I think, at that point, it became pretty clear that he was about to resign.

Preet Bharara:

Look, that was not a complicated explanation. It didn’t require a forensic analysis. It didn’t require a fingerprint analysis. It didn’t require going back and reviewing communications. It was not some complicated accounting fraud that you need to defend against.

Preet Bharara:

What he said today took him seven days to say. And he only said it basically as he was resigning, so that it might not be more scrutiny with respect to that particular allegation. I think that’s one of the reasons that he’s stepping down, because it’s hard to go against that. Although, parting shots delivered by his lawyer and by him on the way out, because that’s his way.

Preet Bharara:

One final footnote on this. I was a little taken aback that he said his resignation is effective in 14 days. And it may be overly cynical, but I believe that Andrew Cuomo is a person of mischief. I take him at his word that he intends to resign. 14 days is a long time that the Lieutenant Governor has been taking steps to be ready. I don’t know why she couldn’t take office tomorrow. And I hope there’s nothing nefarious about the 14 days, but it strikes me as too long a period. You don’t have to give two weeks’ notice to resign as Governor.

Joyce Vance:

“The transition has to be seamless,” is what he said after praising Lieutenant Governor Hochul. 14 days is a really long time.

Preet Bharara:

Joyce, you’re right, 14 days is a long time. At which point the Lieutenant Governor, Kathy Hochul, will become the first woman Governor of the state of New York in history.

Preet Bharara:

Here’s our conversation about all the events and allegations that led to the resignation, taped just moments before the announcement.

Joyce Vance:

So, Preet, a week ago, as we were finishing up our podcast, the long-awaited report, the independent report that the New York Attorney General had put in the hands of outside investigators regarding allegations that your Governor, Andrew Cuomo, had engaged in sexual harassment on a couple of occasions. That report said –

Preet Bharara:

More than a couple. More than a couple.

Joyce Vance:

More than a couple. Well, originally, it started out with a couple, right? By the time of the report comes out, we’re looking at 11 women who have given highly detailed reports. And the report itself is comprehensive, they talked to 179 witnesses. There is a lot of detail that these women put into the report, on the record, testifying: time, how they felt, what his conduct was, with great specificity.

Joyce Vance:

And of course, he responded. He gave sort of a blanket denial. There was some effort to controvert the facts. And we can talk about that a little bit. But it looks like he’s in serious danger, frankly. Many Democrats have deserted the Governor, have refused to come to his defense. President Biden has called for his resignation.

Joyce Vance:

And, of course, this is news that has absolutely nothing to do with you, right?

Preet Bharara:

I don’t think so. Because as far as I’m aware, I’m a podcast host and a commentator and a Professor at NYU Law School. And yet, how do I get dragged into this, Joyce?

Joyce Vance:

What’s happening right now is very interesting. Early on, one of the defenses … and I use the term, defense, loosely here … that’s mounted on behalf of the Governor, is that the outside investigators weren’t in fact independent, that they were over-involved in Governor Cuomo’s current, and perhaps past, misconduct.

Joyce Vance:

And that, in large part, is because one of those investigators, Joon Kim, was your Deputy when you were the U.S. Attorney. And so there’s sort of a woven narrative that says that because of the history there, the investigation wasn’t independent. Do you have thoughts about that?

Preet Bharara:

I have many. I have many thoughts, Joyce. Look, I commented on the investigation before. I have nothing to do with it. I’m not involved with it. I’ve always said, and made clear, that Joon is a friend of mine. I persuaded him to come back into government from private practice as my Chief Counsel, then promoted him to be the Chief of the Criminal Division, then the Deputy U.S Attorney. And then when I was fired he became U.S. Attorney.

Preet Bharara:

He’s an upright, honorable, smart, ethical, brilliant lawyer, who always does the right thing. But as you and I have noted many times … and I’m sure you experienced in your time as U.S. Attorney … people, prominent people among them, do not like to be investigated. And when they don’t have great defenses, they like to attack the integrity and the independence of the people who investigate them. Donald Trump does the same. And many other people do it on both sides of the political aisle, if there are corruption investigations that are at hand. And so he’s done the same thing about Joon.

Preet Bharara:

What’s weird about this is my former friend, Paul Fishman. Paul Fishman, I should point out, was a colleague, as the U.S. Attorney in the state of New Jersey. And he currently represents the New York Executive Chamber, which is not the Governor himself personally, but the office of the Governor. Paul Fishman put in a letter to the investigators that was released, I think on Friday, in which I’m mentioned 33 times.

Preet Bharara:

Why am I mentioned 33 times in this letter when Joon Kim is the investigator?

Joyce Vance:

My flippant response is because Cuomo doesn’t have a good defense to the allegations. And so folks who don’t have good defenses do exactly what you’ve outlined, they start to attack the police.

Joyce Vance:

Before we talk about what’s in the Fishman letter, I think it’s worth pointing out, Preet, that you were surprised when this report dropped. I was getting some messages at first, maybe thinking that Cuomo himself was speaking. And so I was sharing that with you in real time. And then we realized that it was actually New York’s Attorney General, Letitia James, who was holding a press conference. And you were as surprised as anyone else.

Joyce Vance:

So for all of the closeness that Cuomo’s team seems to think that you have with Joon, you certainly did not have any sort of a heads up that this was coming.

Preet Bharara:

So, they forthrightly admit … I don’t know how this makes them look good … that on multiple occasions, Andrew Cuomo tried to harm my public service career. They include in the letter, an anecdote in which Andrew Cuomo says he called the White House to tell them, under no circumstances should they think about appointing me the Attorney General when Eric Holder was considering stepping down.

Preet Bharara:

And then another occasion … they don’t quite strenuously deny the story, but there was reporting that Andrew Cuomo told Donald Trump not to keep me on, to fire me, because I was “not his friend”.

Preet Bharara:

The lawyers who wrote this letter … Paul Fishman included … don’t really make a big deal of suggesting that’s not true. Although, they note that Andrew Cuomo denied it at the time. But they still use it, this supposedly untrue anecdote. They use it as evidence that I would have a reason to not be fond of Andrew Cuomo.

Preet Bharara:

All of which is well and good. But the idea that, on multiple occasions, Andrew Cuomo tried to derail me, and therefore Joon Kim is biased in the investigation, does that carry weight with you?

Joyce Vance:

It carries zero weight. I mean, it smells of desperation. This is what folks do when they need a public narrative and they don’t have one. And, of course, Paul Fishman and Rita Glavin do a press conference in response to the report. And I’m expecting them to lead with, “The Governor never did this,” and very specific responses to the very specific allegations that are made by the 11 women.

Joyce Vance:

And instead, what we hear is, “Well, we didn’t have a chance to review the report before it came out.” I mean, that was really the best that they could muster, along with the attacks on you because your friend is conducting the investigation. Do you think that they scored any points with any of this?

Preet Bharara:

I mean, I’m a little bit close to this, obviously. I was on Kara Swisher’s podcast this week, as a guest host on the Pivot podcast. Which, by the way, is also a part of the Vox Media Podcast Network, I should say.

Joyce Vance:

A great part of it.

Preet Bharara:

So that the company is happy with me.

Preet Bharara:

And she kept asking me the question, “Why is Andrew Cuomo so obsessed with you?” And I got, “I don’t know.”

Preet Bharara:

I think there are a couple of other problems with the argument. And one is, at the time the appointment was made, neither Andrew Cuomo nor any of his lawyers made any fuss about it. They waited to see if the report was damaging or not. And, of course, it ended up being very damaging.

Preet Bharara:

Here’s the other point that they make, which I think doesn’t go the way that they want it to go. In the letter, referring to me, they say … this is back when I was in office … “During speeches and interviews, Mr. Bharara repeatedly articulated his deep distrust of politicians in Albany and his intent and eagerness to probe deeply to find evidence of wrongdoing.” Which seems fair to me. He goes on to say, “It is reasonable for our client to question whether Mr. Kim shared those views.”

Preet Bharara:

Isn’t that a good thing? My own involvement aside, I’m confused by the argument. I believe that Paul Fishman clerked on the Supreme Court, that is not an evidence … I hate to say … in this letter, and certainly not in this paragraph. Isn’t it a good thing to be eager to probe deeply to find evidence of wrongdoing? Isn’t that what prosecutors do? Isn’t that what Andrew Cuomo would have said he did, both as an ADA and as an Attorney General?

Joyce Vance:

I noticed that in this letter, in a couple of places, Paul is very careful to say, “Our client wanted us to make the argument,” as he launches into this stuff about potential bias that you had in this area.

Preet Bharara:

Do you think Fishman was coerced or goaded into making these arguments?

Joyce Vance:

Well, look, as a lawyer, you’re never coerced or goaded, right? I mean, you have to do the right thing, that’s your ethical obligation. Certainly, your duty is to represent your client. I think sometimes you see a lawyer use that device. But, of course, we’ve all seen the extreme example pan out in the last couple of weeks as Trump lawyers have been sanctioned for making clearly frivolous claims. I don’t mean to suggest that that’s what’s happening here. But we know that lawyers, at some point, are expected to act based on ethics and good practices for legal professionals, and not do whatever their client wants them to do. So here, the lawyers obviously thought that this was a tenable choice.

Joyce Vance:

But, Preet, I mean, I am curious about something. Let’s put the best face on one of the arguments they’re making here. They’re saying they should have seen the report before it was released so that they could have responded or corrected any inaccuracies. They believe that in at least one of the cases the timeline doesn’t work out. Do you agree with that? Should they have had a chance to review this report before it was released?

Preet Bharara:

When people make arguments and make defenses, some of them are strong, some of them are weak, and some of them are reasonable things to say. I think it is not unreasonable at all for the Trump lawyers and the Chamber’s lawyers to say, “Look, it would have been better, and it would have been more fair in the process, if we had been able to review some of the allegations and correct errors and make our own responses.”

Preet Bharara:

They are correct to say that certain kinds of investigations do unfold that way. Paul Fishman was correct to say that Inspector General Reports at the Department of Justice are done that way. There’s an opportunity for a back and forth between the agency and the people who are being investigated and who have conclusions being drawn about them. That’s part of the way they do it. I don’t know if that’s a function of guideline. I think it probably is.

Preet Bharara:

Here, there’s no legal requirement, there is no ethical requirement to do so. It’s still not a crazy argument to make. I think that the purpose of this report was to lay out the findings that these investigators would come to. And then there’s a process by which there’s either an impeachment, or civil suits would follow. I think the lawyers are correct to say that, unlike in some other circumstances … and this is an unusual circumstance … there was no planned formal adjudication of the report, it sort of stands on its own.

Preet Bharara:

And so, look, it’s a fair point to make. I think it’s a procedural point that doesn’t carry a ton of weight, because they had the opportunity and have taken the opportunity to dispute things in the report. They put out the letter we just talked about, they put in another letter authored by Rita Glavin at the beginning of the process, they’ve gone on television and talked about the things that they find to be unfair or inaccurate. So they’ve had that opportunity.

Preet Bharara:

The other thing that they’ve mentioned is that the witnesses who were interviewed haven’t had the chance to review the transcripts of their interviews so they can make corrections. One reason for that, I presume, is that in a sensitive investigation like this, if you start handing out people’s transcripts they have a way of getting around. And people have a way of matching up their testimony. And knowing how Andrew Cuomo handles things, and knowing his reputation for intimidation and for scorched earth practice, they didn’t want him to get ahold of other people’s testimony. “Those things will be made available,” the Attorney General’s office says, “On an ongoing basis.” But, again, it’s not a crazy argument to make.

Preet Bharara:

What I think is a crazy argument to make, that defense lawyers chose to make, Rita Glavin in particular, in her something like 85 page response to the report of the investigators. There were some texts, but there were 50 pages of photographs of Andrew Cuomo kissing and hugging various people, including his mom. And photos of Barack Obama kissing and hugging … mostly hugging … victims of hurricanes. Was that a good argument? Was that a good defense?

Joyce Vance:

Well, it was interesting. I remember my reaction when I first downloaded that was, “Wow. This is really long. I’d better set aside a lot of time to read.” And then I just started laughing in disbelief, looking at the pictures. Especially early on, there’s this picture of Hillary, and Cuomo is hugging her and maybe kissing her and she’s laughing hysterically.

Joyce Vance:

And so I look at that picture and I’m thinking, “How’s this a defense? In what way does this defend the fact that maybe you hugged and kissed people who welcomed it? Or that other politicians hugged and kissed people? What does that do to refute these very serious allegations made by 11 women with great specificity?”

Joyce Vance:

And as I read through and looked at the pictures, nothing changed that initial reaction that it was nothing of a defense. I mean, what was your reaction to the photos?

Preet Bharara:

My reaction was, is this a circumstance in which this was dictated by Andrew Cuomo? In his own prerecorded statement, they had a montage of such photographs. I think it was insulting to the testimony of the women who came forward, some of whom talked about things much more intrusive, possibly bordering on criminal, kinds of contact that Andrew Cuomo engaged in. I think it was frivolous. I think it was silly. I think it undermined the defense. And I have not seen them return to that, because I think they got the sense that it didn’t make a lot of headway for them.

Preet Bharara:

I think the other thing … and I’m curious what you think about this. I mean, some of these allegations were reported previously, that’s what prompted the investigation in the first place. But there’s some new stuff that went unresponded to, and a lot of which still remains unresponded to. And one of those is the allegation by a yet unnamed state trooper. And the narrative around this is very bizarre. According to the report, Andrew Cuomo, once upon a time, is at an event at the RFK Bridge, which we used to call the Triborough Bridge, here in New York City. And he lays eyes on a female state trooper, and shortly thereafter basically gets her to be on his personal security detail. Even though, it turns out, according to the report, that she didn’t have the requisite number of years. They made an exception just for her.

Preet Bharara:

And so people are wondering: what is this about? And Rita Glavin, at the press conference, gets asked the question. And I found this to be fascinating and bizarre. She’s asked, “Why was he thinking to bring her?” And Rita, certainly at the direction of the Governor, had taken the position that the Governor is always interested in diversity and gender diversity; which is interesting against the backdrop of all these other allegations. And then says, “He was very impressed by her.” And the reporter basically asks, “Can you explain what the Governor was impressed by? How did he find her to be impressive?” And out of the box, the first thing Rita Glavin says is …

Rita Glavin:

He liked how she maintained eye contact. He liked that she was assertive with him in the conversation.

Preet Bharara:

I ask you Joyce, is that more consistent with a future for someone who you want to be on your security detail because of her skills as an officer? Or future harassment?

Joyce Vance:

Apparently, he was able to discern from her strong eye contact that she was well-qualified, despite the fact that she did not have the requisite three years of experience.

Joyce Vance:

I mean, everything about this just screams that it had more to do with her looks and his reaction to her than anything else. And it’s very telling here that they had all this time to prepare. They had to have known that this particular question would be coming. And this was the best response that they were able to muster.

Joyce Vance:

And since then, a couple of times, they have said that Cuomo will address this himself directly. And as time has gone on, and yesterday on MSNBC, I think, Rita Glavin was asked this again. And they pressed her, “When will the Governor respond to this?” And she said, “Well, when he’s ready. When he’s ready.”

Preet Bharara:

But soon. It’s coming soon, to a theater near you.

Joyce Vance:

I think this one piece of the report standing alone, the story about the trooper who’s hired on this really specious basis, with whom he, on a couple of occasions, has really inappropriate physical contact. On one occasion while she’s holding a door open for him to enter at an official function, and he takes his hand and runs it across her body. And she’s a member of his security detail. And then a second occasion where they’re in an elevator together. And he says, “Hey you,” and runs his finger down the back of her spine. Those allegations just, I think, in and of themselves, would merit some serious kind of action.

Preet Bharara:

And here’s a defense that I’m sure we’ve heard a lot, and it makes surface sense. And that is, “Look at me, I’m a 63 year old man who has spent most of his adult life in public view. It would be insane for me to do this kind of thing.”

Preet Bharara:

And yet, again and again and again, people do insane stuff. Just ask Anthony Weiner. Just ask a host of other folks who’ve done this kind of thing. And although I guess it has some surface appeal to people who have just dropped off the turnip truck, it is of no consequence and it’s a stupid argument.

Joyce Vance:

A large part of Cuomo’s strategy appears to be to make the story be about anything other than himself. I mean, it’s about you, it’s about Joon. It’s about all sorts of things that don’t really matter.

Joyce Vance:

In that vein, just as we were preparing to tape the podcast this morning, Ronan Farrow dropped a new article in the New Yorker magazine.

Preet Bharara:

Oh, what’s the headline? What’s the headline of that story?

Joyce Vance:

So it’s a great headline, Preet. It talks about Andrew Cuomo’s war against a federal prosecutor. Who’s the federal prosecutor?

Preet Bharara:

Apparently me. Apparently me.

Joyce Vance:

It is all about you.

Preet Bharara:

No, it’s not all … it’s actually only a small amount of the article is about me. So I think the headline is an overstatement.

Preet Bharara:

So it recites a story from seven years ago, April of 2014, at a time when Andrew Cuomo and his shuttering of an anti-corruption commission, under weird circumstances, subjected him to investigation by my office and the FBI. And it recounts this article for the first time anywhere, a particular incident.

Joyce Vance:

The article suggests that Cuomo makes a phone call to Valerie Jarrett. And so Valerie Jarrett is, at that time, one of the most senior advisors to President Obama. Calling Valerie Jarrett, in my judgment, is akin to trying to put information in front of President Obama. Do you think that’s fair?

Preet Bharara:

Yeah, I do.

Joyce Vance:

So in this seven year old phone call, Cuomo apparently … we don’t have a transcript of the call, and the reporting is that Jarrett shut it down pretty quickly because she knew it was improper. But Cuomo, in essence, is asking that, “You stop any investigation that’s going on inside of your office,” that’s cutting too close to him. Do you think that’s a fair characterization of the phone call?

Preet Bharara:

I wasn’t party to the conversation. And as you point out, there’s no transcript of the conversation that I’m aware of. But clearly the reaction of Valerie Jarrett, who is a political figure in the White House, upon getting a call from a sitting Governor about a sitting United States Attorney who was investigating the said Governor, she immediately realized, according to the article and her on the record statement by the way … she went on the record about this, which I think is significant. Someone of the same party.

Preet Bharara:

And she says to Ronan Farrow, “He did in fact call me, and raised concerns about the commission.” And then goes on to say, “As soon as he started talking and I figured out what he was talking about, I shut down the conversation.” And then what did she do? She goes immediately to the White House Counsel, Kathy Ruemmler, reports the call. Which, by the way, you don’t do if you thought it was a nonchalant, innocent call.

Joyce Vance:

And she did it immediately. She didn’t wait. She did it right away.

Preet Bharara:

And then, according to the article, she goes and tells the Deputy Attorney General Jim Cole. So she makes an official notification to the Department of Justice, at the highest levels. And then according to the article … and I can confirm, because this is when I do end up participating in the chain of events … the sitting Deputy Attorney General called me to report this troubling call because he thought it might be relevant to our investigation.

Joyce Vance:

So what do you do with that as a federal prosecutor? You’ve got an investigation going on into public corruption and someone very close to that investigation has called, essentially, into your boss, your big boss, and tried to shut you down. Is that something you set aside? Does it become part of your investigation? How did that work?

Preet Bharara:

I want to be careful about what I say. But just to go back to how the Deputy Attorney General thought about that call. He said to Ronan Farrow, “He shouldn’t have been doing that,” referring to Andrew Cuomo. “He’s trying to exert political pressure on basically a prosecution or an investigation. So Cuomo trying to use whatever muscle he had with the White House to do it, was a non-starter and probably improper.” And so that becomes a part of the investigation.

Preet Bharara:

I should make clear by the way … and there’s all sorts of other allegations about impropriety in shutting down the Moreland Commission and Andrew Cuomo overbearing the will of people on the commission. This is all well-known to people in New York from a few years ago. At the end of the day, we determined there was insufficient evidence to bring any criminal charge against Andrew Cuomo. So I just want to make that clear. And there was no charge brought with respect to that phone call. But, obviously, it becomes part of your investigation, it becomes part of everything you look at.

Preet Bharara:

And the other comment I’ll make, which reflects very well on the White House and the Justice Department at that time … given especially what we’ve seen in recent times about Jeffrey Rosen and Mark Meadows making calls about overturning the election … this was a textbook way of handling an improper political phone call about an ongoing investigation. Valerie Jarrett got the upshot of what was being said, shut it down, made a report. The report came back to the original investigator, me. And that’s how it should work.

Joyce Vance:

It’s not difficult. This is prosecutions 101. This is how a functional White House works. And maybe that’s ultimately the impact of this story.

Joyce Vance:

But there’s something else, a theme that runs through this new story, that I think is pretty interesting. Because the suggestion is that what’s revealed about Governor Cuomo in the sexual harassment report is confirmed by his long-term practice: harass, intimidate, retaliate.

Joyce Vance:

And that’s one of the points that’s made here. And there’s a particularly interesting conversation with a woman … who I think you know, also a former federal prosecutor … who ends up running the Moreland Commission and talks about how it gets sidelined. Did you think that that was instructive at all?

Preet Bharara:

Yeah. I mean, you’re talking about Danya Perry, who says a lot of things about the way the Governor conducted himself, much of which our investigators and prosecutors knew at the time when they were doing the investigation. But I think all of this is relevant in the current circumstance. You learn something about the way a person deals with investigations. And I say, and I’ve said publicly before … and I stand by my comparison between Andrew Cuomo and Donald Trump, particularly in light of the revelation of this new call. It’s right out of the Donald Trump playbook … it tells you something about the believability and credibility of denials, particularly denials about retaliation.

Preet Bharara:

And a lot of what the report that was issued last week is about is a culture of retaliation, of bullying and trying to shut things down. And this is not the first time that he’s done it in connection with this AG report. He did it as outlined for the public seven years ago. Or at least tried to do it seven years ago, in connection with an SDNY investigation. This is something this person does again and again and again. I don’t know if the assembly in New York State will consider it relevant, but it’s out there for people to make conclusions about.

Joyce Vance:

As you point out, the Governor now faces potential impeachment. In addition, as a result of the report, at least a couple of criminal referrals have been made. It looks like they may be misdemeanor assaults under New York law.

Joyce Vance:

And, of course, the Governor faces, I would suspect, multiple civil lawsuits brought by the women who have now come forward. Those would be civil cases, not criminal cases. So this entire scenario is far from over.

Preet Bharara:

Yeah, I think that’s right. I mean, we should maybe spend a moment talking about the likelihood of criminal charges. Now, I was never an assistant district attorney, I didn’t do these kinds of cases. But I have some sense of them and I’ve talked to folks. And I guess a really important question, when you have conduct like this … this came up when Eliot Spitzer left office, prior Governor. After his association and use of prostitutes. I’m curious how you think about this.

Preet Bharara:

Obviously, every kind of assault is serious. Misdemeanor assault is serious. But it does not carry the highest sanction in terms of prison sentence. And if it turns out that a particular DA’s office, generally speaking, with respect to an ordinary person, an average person, would not bring a criminal charge if there was no prior criminal conduct.

Preet Bharara:

If that’s not a case that they would ordinarily prosecute, then the question is, is it appropriate and fair to prosecute it against someone who’s a sitting governor? In other words, do you treat the Governor like you would treat an ordinary person? Or do you hold the Governor to a higher standard because he’s the Governor? Where do you come out on that?

Joyce Vance:

Well, two things. Law enforcement in Albany was quick to say that they would treat this case no differently than anybody else, that it wouldn’t move faster or slower or result in any sort of different treatment. And I agree with that as a general principle, but with this exception, particularly when you’ve got the Governor assaulting … whether it’s a misdemeanor or a felony … a law enforcement officer, a member of the team who’s dedicated to protecting his security, I think you may actually give that a harder look. Because there’s really no comparison to how you would treat an ordinary citizen.

Joyce Vance:

But I do suspect that if your average citizen walked up to a member of the Governor’s detail and touched her inappropriately, and particularly with a sexual emphasis, that law enforcement would take a look at that one. And they should here too.

Preet Bharara:

One defense that has been made repeatedly by Rita Glavin concerns the allegations made by Executive Assistant Number One. Which is one of the more serious allegations because it involves physical assault. Rita Glavin, and others, have said that the report specifies November 16th as the date that that happened. And they’ve gone through and looked at the timeline and talked to other people who were at the mansion at the time. There are a lot of people around.

Preet Bharara:

And I don’t know all the details and I don’t have the witness transcripts. My basic reaction is simply because there are other people in a large mansion, working, does not negate the allegation that there was a closed office … and I think there’s no dispute that Andrew Cuomo has his own office and it has a door that can be closed … and engaged in that misconduct at that time because other people were not in the room. Do you have a reaction to that?

Joyce Vance:

So I think what she’s suggested so far is that the timeline is wrong, that the timeline doesn’t support the allegations, and that they omitted facts that were to the contrary. And so I would agree that a full investigation is absolutely warranted. You talk to all of the witnesses, you figure out everything that went on. Even as a prosecutor … and I’m sure you’ve done this too, right? … I always like to walk the area to see if there was a physical detail that stuck out. Maybe something was impossible because of the layout, or perhaps some of the evidence popped into focus when you saw the place where things occurred.

Joyce Vance:

Having said all of that, these cases are very difficult to prove. In fact, over the history of sexual assault prosecutions … talking now about criminal cases in this country … one of the real issues is that typically when you’re in a situation that involves a sexual assault, there are only two people in the room. And in many ways, you’ve just got a classic he said, she said. So all of those elements come to light here.

Joyce Vance:

But that said, they’re raising good questions. They’re raising questions that defendants are entitled to have explored. None of those questions are inconsistent with the fact that this may well have happened and that outside investigators have concluded that it did.

Preet Bharara:

Look, I want to make something clear. It’s perfectly appropriate for people to raise questions. These are better questions, and this is a better approach, than pictures of Andrew Cuomo kissing his mother; which is ludicrous and ridiculous and nonsensical.

Preet Bharara:

At the same time, I don’t think these things necessarily negate the allegation. And among other things, that executive assistant has not come forward herself. People judge the credibility of witnesses and victims by their demeanor and about what their motivations are. I think Rita Glavin is suggesting that this person had some motivations.

Preet Bharara:

And she should ask those questions. And we’ll see if there’s responses about who was talked to and who wasn’t talked to, and if there was a reason to talk to somebody or not a reason to talk to somebody. But I don’t begrudge this kind of argument being made. It’s some of the other things, like the attacks on bias and some of the other stuff that they’re doing, I think is beyond the pale.

Preet Bharara:

But, look, this is what happens when you have something contested, it becomes difficult. As I’ve said to people, when you have 11 allegations, 11 victims, as opposed to just one or two, what defense lawyers always do … in my experience, and I’m sure in yours also … is to do the best that you can to attack specific allegations, one by one, and raise some doubt about them. And then prosecutors … but there are no prosecutors in this case just yet … the people who are trying to make the determinations about what happened, when you take them all together it becomes difficult, both in the court of law and here in the court of what will be the deciders, the state legislature, to, with a straight face, make the argument that all of these people are lying.

Preet Bharara:

And I guess they’re saying that not everyone is lying, that some of them got the wrong impression and they’re not as serious. But make no mistake, the argument that’s being made here is that a number of these women are lying and have motivation to lie. And given what the country has been through and how the law has unfolded, that is sometimes a hard thing to swallow. What do you think about that?

Joyce Vance:

I agree. And the fact that she’s come forward now, suggests that they realized that the strategy of distraction and almost trying to just brush this to the side with all of the photos that they use suggesting that this was normalized conduct.

Joyce Vance:

And I wonder if we’re a little bit jaded because of the times we’ve lived through and the allegations about the former president? But this is really shocking. This is a sitting Governor of a state, who is using the women that he comes into contact with professionally almost like play things.

Joyce Vance:

And there’s something about it that’s just so deeply concerning to me. And it tells me that we’re in a place in this country where we really need to do more to make sure that we’re protecting women and that there are allies for women. These allegations shouldn’t have remained behind a curtain of silence for so long. But they did because these women were afraid of the Governor and his power.

Joyce Vance:

Thanks for joining us today. We obviously have a lot going on while we’re taping the podcast, which means Preet and I will have a lot more to talk with you about in the coming weeks as this whole situation unfolds.

Joyce Vance:

We’ll see y’all next Tuesday. Please send us your questions to letters@cafe.com.

Preet Bharara:

And we’ll do our best to answer them.

Preet Bharara:

Thanks, Joyce.

Joyce Vance:

Thanks, Preet.

Preet Bharara:

That’s it for this week. CAFE Insider is presented by CAFE Studios and the Vox Media Podcast Network. Your hosts are Preet Bharara and Joyce Vance. The executive producer is Tamara Sepper. The senior producer is Adam Waller. The technical director is David Tatasciore. And the CAFE team is Matthew Billy, David Kurlander, Sam Ozer-Staton, Noa Azulai, Nat Weiner, Jake Kaplan, Chris Boylan, and Sean Walsh. Our music is by Andrew Dost.

Preet Bharara:

Thank you for being a part of the CAFE Insider community.