*Published on 3/3/2021

Elie Honig:

From Cafe, this is Third Degree. I’m Elie Honig. Here’s how bad it is right now for New York Governor Andrew Cuomo, of his own doing. There’s an FBI and DOJ investigation of his offices potentially criminal handling of data on COVID deaths and we’re not even going to talk about that today. We surely will sometime soon.

Today, we’re going to focus on the issue that’s unfolding far more quickly, far more immediately. The now multiple allegations of sexual harassment made by two former staffers of Governor Cuomo, plus a third woman who did not work for the state.

Quick recap here. First Lindsey Boylan, Former State Economic Development Official, publicly said that Governor Cuomo had sexually harassed her several times between 2016 and 18, including an unwanted kiss in 2018, after a one-on-one briefing. Now a Cuomo spokesperson responded by saying, and I quote, “Ms. Boylan’s claims of inappropriate behavior are quite simply false.” Notice the ambiguity here. Are they denying that what Boylan said happened or are they simply claiming that it wasn’t inappropriate; big difference.

Then a second staffer, woman named Charlotte Bennet came forward and alleged that Cuomo made inappropriate, unwanted sexual overtures to her, again in the office. You’ve probably read the details, but gross talk about her sexual behavior and older men and that kind of thing.

Now, Governor Cuomo’s response were that some of his comments in the workplace, “May have been insensitive or too personal.” Said he was, “Truly sorry to those who might have ‘misinterpreted the remarks as an unwanted flirtation.'”

Now, Charlotte Bennet responded publicly and in short, she was not having it. Understandably, she said, “These are not the actions of someone who simply feels misunderstood. They are the actions of an individual who wields his power to avoid justice.”

And now a third woman who did not work for Cuomo, but just met him briefly at a wedding, has also alleged an unwanted advance where the governor asked at one point, “Can I kiss you?” Now, of course, there has to be an investigation. We’ll get plenty into that investigation as it unfolds in the upcoming weeks but the first question and a very important one is, who will run any investigation? Take it from me. I’ve seen lots of prosecutors who have all sorts of different approaches. I’ve seen lawyers who approach things differently. It matters a lot who runs this investigation and here’s an indicator of how messy this could get. Before any investigation even got out of the gate, Governor Cuomo reversed course multiple times and still didn’t quite get it right until the very end. So let’s take a look.

First, Governor Cuomo announced that he would appoint a Retired Federal Judge, Barbara Jones, to run the investigation. Now I’ll be honest. My first reaction when I heard that proposal was perfect because I know Judge Jones. She was a federal judge in the SDNY for 18 years. I did many cases in front of her. I had one particularly difficult trial in front of her. It was complex and messy and she handled it masterfully.

Judge Jones was among the absolute, most respected judges in the SDNY. If you polled the entire office and said, “Who are just the five best judges?” I guarantee you, she would have been one of the highest ranking judges. But I’ll also say this. I quickly realized that my first reaction was wrong. I wasn’t wrong about Judge Jones. I’m right about her. I was wrong about the process. Because the very fact that Judge Jones had been hand-picked to do the job, singled out by Governor Cuomo himself, right there, that would undermine public confidence in an unacceptable way and an investigation ultimately is nothing without public confidence.

The reality is no matter what Judge Jones did, no matter how the investigation came out, especially if it somehow came out favorable to Cuomo, people could and almost certainly would say, “Well, of course. He hand picked her.” Anyway, there was quick public backlash against that first proposal from Governor Cuomo, which brings us to phase two.

Next, Governor Cuomo said, “Okay, let’s try this. Let’s have the State Attorney General Letitia James, and the state’s top judge, Chief Judge of the Court of Appeals, Janet DiFiore, get together and they’ll pick somebody. Better step in the right direction, but still not quite right under the law. There were two big problems.

First of all, the governor just doesn’t get to pick who investigates him, nor does he get to pick the people who pick the person who investigates him. It’s just one step removed. Now, Judge DiFiore, there’s no indicator of anything improper here, but the fact is she’s a longtime political ally of Governor Cuomo’s and we’d have the same issue we discussed before, that no matter what, there would be at least the appearance, the public perception, that there could be some favoritism at play and there’s nothing more harmful to an investigation than that.

Here’s the second big problem under Governor Cuomo’s second proposal. Whoever got tabbed to do this investigation would not have subpoena power, meaning the ability to issue subpoenas, which are formal, enforceable commands to either testify under oath or to produce evidence and that is crucial. You need subpoenas to force people to testify, to turn over documents and other evidence, under penalty of perjury. Without subpoena power, it’s just not a real investigation. It’s really just asking people to please, please help out but only if you feel like it from the kindness of your heart. Obviously that’s not going to give you the full story. Investigations without subpoena power are basically toothless and for those reasons, the Cuomo proposal number two was met with about the same public rejection as number one; no dice.

Which brings us to where we are now, option number three, it’s up to the attorney general. This is how it’s supposed to work. Under New York law, once there’s a formal referral from the governor’s office, then the AG takes over and finally on try number three, Governor Cuomo’s office did it right. They formally referred the case to the attorney general.

Now, the attorney general has two options. She can either do the investigation herself, or she can appoint another person to do it. And crucially either way with the subpoena power, with that all important power to compel evidence and it now appears Attorney General James will go for the latter option. She will appoint an outsider, a law firm. We don’t know yet who the attorney general will select, but in general, that’s a smart and correct decision by the attorney general, to outsource it because there’s a bit of, if not quite a conflict of interest, let’s call it an inherent political tension between Governor Cuomo and AG James. Let me explain.

First, just a couple of weeks ago, the attorney general issued a scathing report about Cuomo’s handling of the COVID crisis. The attorney general concluded that the governor’s office had under counted COVID deaths and “May have put residents at increased risk of harm in some facilities.”

Now bigger picture. Governor Cuomo has something right now that Attorney General James may want real soon and that’s the governor’s chair. Now, if you look back through history, it’s very common for the attorney general job in New York state to be a direct road to the governor’s office. Though it turns out, one that has been fraught with scandal in recent years.

First, Eliot Spitzer. He was the AG from 99 to 2006. Then he became governor of the state. Of course, he ran into a massive scandal and had to reside as governor. Andrew Cuomo himself was AG from 2007 to 2010. He then became governor and he’s held that job for the last 11 years. And then Eric Schneiderman was the AG from 2011 to 2018. He seemed to be on his way to the governor’s office until he too was taken down by his own abuse of power and his own horrible actions.

By the way, I have to add this historical footnote. Aaron Burr was once attorney general of New York state. He went on to become, forget about governor of New York, the vice president of the United States. He too had a little bit of trouble. You know, that thing with Alexander Hamilton over in Weehawken. So there’s plenty of speculation that whenever Andrew Cuomo is done as governor and for a while, by the way, people were talking about, would he run for president or be the VP pick or be named to Biden’s cabinet, now far more likely by resignation or perhaps electoral challenge. There was speculation that when Cuomo was done being governor, Attorney General, Letitia James was the most likely person to replace him and that still seems to be the case.

So again, you’d have at a minimum, a public appearance of some sort of tension there and public confidence matters. And if James herself ran the investigation, people would say, “Well, of course, she just wants to knock off Cuomo to clear the way for herself.” So that’s why it was smart and right for the attorney general to choose an outsider, to do this investigation fair and right down the middle.

So Cuomo’s office took three shots at this and finally on the third, they got it right? But look, the very fact that it took Cuomo three shots to get it right, is not itself a great look and not itself, a great indicator. It certainly looks like he tried to game the system. He tried to install a person who might be sympathetic or who might not have full subpoena power necessary to really run a meaningful investigation.

So it is going to be a rocky few months ahead for Governor Cuomo politically on this issue and potentially legally on the COVID reporting issue as well. And in the upcoming weeks, we will follow all of the developments relating to Governor Andrew Cuomo here on Third Degree.

If you have any thoughts, questions, or comments, please let us know at letters@cafe.com. Thanks for listening. We’ll be back with another episode on Friday. I’m Elie Honig. This is Third Degree.

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Third Degree is presented by CAFE Studios. Your host is Elie Honig. The Executive Producer is Tamara Sepper. The Senior Producer is Adam Waller. The Technical Director is David Tatasciore. The Audio and Music Producer is Nat Weiner and the CAFE Team is Matthew Billy, David Kurlander, Sam Ozer-Staton, Noa Azulai, Jake Kaplan, Geoff Isenman, Chris Boylan, Sean Walsh, and Margot Malley.