Embattled and losing allies daily, New York Gov. Andrew Cuomo (D) appears to be resorting to intimidation. Lawmakers in the Empire State are making the case that the governor’s “threats” are in violation of the law.
Legal experts tend to agree.
Cuomo made the apparent threat during a Sunday afternoon press conference when addressing increasing claims of sexual harassment against him in recent days. On Sunday, former Cuomo aides Ana Liss and Karen Hinton came forward to accuse the third-term New York Democrat of inappropriate conduct—the fourth and fifth women to do so.
In those remarks, Cuomo singled out New York State Sen. Alessandra Biaggi, a Democrat who represents parts of the Bronx and suburban Westchester County. Biaggi recently called for Cuomo’s resignation and said that if the governor does not do so voluntarily, the legislature is prepared to impeach him.
“If that’s what Sen. Biaggi wants to do, let’s release all the allegations that JCOPE [the New York State Joint Commission on Public Ethics] and the attorney general and the DAs have about senate members, and then let’s put them out in the public arena, and then let’s decide publicly,” Cuomo said. “That’s absurd.”
A 10-year-old ethics organization focused on lobbying, JCOPE’s tenure in New York State politics mirrors the length of time Cuomo has served as governor. The commission is currently chaired by a Cuomo loyalist. The governor’s invocation of JCOPE dossiers was immediately viewed as a threat against elected officials who might vote to impeach him. Cuomo recently made a remark publicly about Democratic New York State Assemblyman Ron T. Kim that was interpreted in a similar way.
Cuomo’s last ditch threat seems to be scaring assembly members into not impeaching him because he’ll drop JCOPE investigations on them, even though he claimed JCOPE was independent when we all knew it was anything but. He’s definitely running out of options.
— Ross Barkan (@RossBarkan) March 8, 2021
On Sunday evening, The New York Times reported that Cuomo’s press conference was hastily scheduled to preempt a demand from New York State Senate Majority Leader Andrea Stewart-Cousins (D) that he resign.
With the Times now reporting that Cuomo called his last minute Sunday presser to prebutt @AndreaSCousins’ call for his resignation, this reads entirely like a threat and not at all a hypothetical one https://t.co/LfVUR4G0Cm
— Harry Siegel (@harrysiegel) March 8, 2021
Sen. Biaggi told Law&Crime that she interpreted Cuomo’s statement as a threat—and said it was illegal, too.
“Threatening people is never legal,” Biaggi said in a message.
New York State Sen. Julia Salazar, a Democrat and socialist who represents the Brooklyn neighborhoods of Bushwick, Cypress Hills, and Greenpoint, agreed. She told Law&Crime that the governor’s threat “does seem illegal.”
“This is definitely illegal,” New York State Assemblymember Yuh-Line Niou, a Democrat who represents Manhattan’s Chinatown, the Financial District, Battery Park City, and the Lower East Side, said about Cuomo’s invocation of JCOPE.
Legal experts say Cuomo’s words are an invitation for more self-inflicted trouble—including new and separate grounds for an impeachment inquiry.
“There wasn’t a lot of subtlety in the governor’s comment,” Craig Gurian, the executive director of the Anti-Discrimination Center, told Law&Crime, “Look at it under the reasonable person standard. Any reasonable person would have taken that as a threat. ‘Do your job or I’ll make sure you have problems.'”
The attorney said Cuomo’s Sunday presser posed two distinct problems for the governor.
“A threat like this is completely inconsistent with the obligation that a governor has that the laws be faithfully executed,” Gurian explained. “I think there’s probably an independent basis for impeachment there—regardless of how the investigation of the underlying claims turns out.”
The impetus for former president Donald Trump’s widely-panned screed about “suburban housewives,” Gurian’s nonprofit was the lead plaintiff in years-long legal battle with the U.S. Department of Housing and Urban Development over desegregation efforts in Westchester.
The attorney also cited Section 135.60 of the NY Penal Code, which outlines coercion in the third degree.
“If you look at the definition of what that is, it seems pretty clear that that’s what he attempted,” he continued—highlighting subsections five and eight, which have to do with public exposure of private facts and leaning on public officials to stop them from performing theiir official duty.
“I think what’s happened here is that so many people are used to the way the governor does business that they’re a little inured to it,” Gurian went on. “You’re not supposed to make threats like that. It’s one thing to say ‘I’m not gonna give your district more money.’ Here it was so much more direct: ‘Watch what you do or your secrets are gonna come out.'”
Two other legal experts say that if Cuomo was indeed dangling the possibility of releasing JCOPE data on senators in retaliation for their efforts to remove him from office then he is acting both unethically and illegally.
“I’m not sure quite what to make of this apparent threat,” Cornell Law Professor Robert Hockett told Law&Crime in an email. “On the one hand, were it serious—that is, were the governor to have made it in private, with an apparent belief it might actually succeed in affecting behavior—it would likely bring more legal trouble for the governor.”
Hockett went on to question how serious the governor’s threat was, noting that it was said in public and that the public nature of the apparent threat might have prevented those targeted “from taking it seriously.”
“If the latter is the case, though, we then are confronted with another question: namely, what can the governor have hoped to accomplish with this?” the law professor asked rhetorically. “Was he ‘just lashing out,’ or did he actually think it would help in some way. If it’s the latter, then how?”
Law&Crime also addressed the issue with a member of JCOPE who rubbished the governor’s apparent attempt to use the commission in his battle against the legislature.
Syracuse-based attorney Gary Lavine was one of the original 14 members of the commission when JCOPE was founded in 2011. Previously sacked by Cuomo, he was quickly reappointed to serve on the commission by GOP members of the New York State Senate.
“As the law and protocol exists now, we only divulge results of investigations when they are resolved,” Lavine told Law&Crime. “What we don’t put out is the deliberation on an investigation or if there’s no finding of wrongdoing. And we don’t divulge the votes if votes are split.”
JCOPE investigations that find wrongdoing viz. members of the legislative branch and their staff are transferred to and disposed of by the Legislative Ethics Commission. Those determinations must occur within a statutory maximum 90-day timeline.
“I’m not sure exactly what the governor was getting at,” the commissioner continued. “If there’s wrongdoing then it’s publicly divulged, if there’s no wrongdoing then it’s not publicly divulged. If he’s saying every allegation that we get and our deliberations are divulged by us, well the complainant can announce they made a complaint. I’m not quite sure what his premise is. What he’s saying is that he wants to deviate from our practice.”
[image via David Dee Delgado/Getty Images]
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